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A  DIGEST  OF  OPINIONS  OF  THE 
JUDGE  ADVOCATE  GENERAL 

CERTAIN  DECISIONS  OF  THE  COMP- 
TROLLER OF  THE  TREASURY 

THE  COURTS 

AND 

CERTAIN  OPINIONS  OF  THE 
ATTORNEY  GENERAL 


FROM  JULY  1,  1912 
TO    APRIL    1,    1917 


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WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 

1917 


Wak  Depaktment 

Document  No.  572, 

Office  of  The  Adjutant  (loieral 


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■><    '    •  •  a 


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DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL,  CERTAIN 
DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY  AND  THE 
COURTS,  AND  CERTAIN  OPINIONS  OF  THE  ATTORNEY  GENERAL. 


JULY  1,  1912,  TO  APRIL  1,  1917. 


BULLETIN  12. 


Bulletin  1  AVAR  DEPAETMEXT, 


iSo. 


12.    J  AVasiiingtox,  Aur/tost  S,  1912. 


The  following-  digest  of  opinions  and  decisions  rendered  by  the 
I    Judge  Advocate  General,  the  Comptroller  of  the  Treasury,  the  At- 
J    torney  General,  and  the  courts  is  published  for  the  information  of 
\:    the  service  in  general. 

i        It  is  intended  to  embrace  all  important  opinions  rendered  by  the 
,^'    Judge  Ad^'ocate  General  from  January  31,  1912,  to  which  date,  in- 
clusive, the  latest  published  Digest  of  said  opinions  extends,  to  Jime 
*    oO,  1912,  inclusive;  but  it  has  been  deemed  proper  to  publish  some 
(^    of  earlier  date  which  could  not  be  included  in  the  General  Digest  or 
the  importance  of  which  seemed  to  justify  further  publication. 

The  other  opinions  and  decisions  which  have  been  digested  and 

^     which  are  deemed  of  special  importance  to  the  service  cover  prac- 

•  J    tically  the  same  period,  but  for  obvious  reasons  embrace  many  that 

^    are  of  date  prior  to  the  publication  of  the  last  Digest  and  could  not 

be  noted  therein. 

It  is  the  purpose  to  make  this  and  similar  biJleiins  issued  at  stated 
times  the  basis  of  supplements  to  the  published  Digest  and  in  this 
manner  to  keep  the  same  up  to  date  as  far  as  practicable. 
[1931376,  A.  G.  O.] 

By  order  of  the  Secretary  or  "War  : 

LEOXARD  WOOD, 
Major  General,  Chief  of  Staff. 
Official  : 

HENRY  P.  McCain, 

Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEEAL. 

ARMY:  Retiring  board;  action  of  President  on  report  of. 

The  President  may  not  modify  the  finding  of  a  retiring  board. 
He  may  approve  or  disapprove  the  finding,  but,  subject  to  his  right 


4  DIGEST    OF    OnXIOXS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

to  return  it  to  tlie  board  for  recommendation,  beyond  this  he  may  not 
go.     If  the  President  approve  the  finding,  the  hxw  indicates  what 
shall  or  may  be  done.     (See  sees.  1249-1252,  Rev.  Stat.)     If  he  dis- 
approve, the  proceedings  and  finding  of  the  board  are  nullified. 
(C.  29449,  Feb.  17,  1912.) 


ARTICLES  OF  WAR:  Discharge  by  department  commander  under  fourth 
Article  of  War. 

Under  the  fourth  Article  of  War  a  department  comniander  may 
order  the  discharge  of  an  enlisted  man  Avhose  term  of  service  has 
not  yet  expired,  but  paragraph  139,  Army  Regulations,  1910,  serves 
to  direct  that  he  shall  not  exercise  this  right  v,diich  the  law  gives 
him.  I/eld^  that  the  regulation  is  lawful,  as  it  does  not  seek  to  con- 
trovert a  statute,  but  merely  to  regulate  the  conditions  under  which 
the  power  granted  by  the  statute  may  be  exercised.  It  follows  that 
should  a  department  commander  order  the  discharge  of  one  of  his 
men  before  the  expiration  of  his  term  of  enlistment  the  discharge 
would  be  entirely  legal,  but  the  officer  ordering  it  w'ould  have  acted 
in  disobedience  of  a  regulation. 

(C.  23259,  Apr.  12,  1912.     See  also  G..  O.  1T4,  W.  D.,  1909.) 


CIVIL  AUTHORITIES:    Surrendering  soldier   to;    Fifty-ninth   Article   of 
War. 

The  terms  of  this  article,  which  provides  for  the  deliA'ery  to  the 
civil  authorities  of  any  officer  or  soldier  accused  of  a  crime  or  offense 
punishable  by  the  laws  of  the  land,  have  never  been  regarded  as 
modifying  or  affecting  the  operation  of  the  rule  of  comity  which 
prevails  wherever  two  independent  criminal  courts  have  jurisdiction 
of  the  same  person  or  case,  the  rule  being  that  the  authority  whose 
jurisdiction  first  attaches,  by  reason  of  process  retains  jurisdiction 
iintil  its  claim  has  been  completely  satisfied.  (C.  23264,  May  27, 
1909.)  Under  the  above  rule,  where  a  soldier  was  sentenced  to  dis- 
honorable discharge  with  confinement,  and  while  serving  confine- 
ment escaped  and  reenlisted  in  the  military  service  under  an  assumed 
name  and  Avas  again  arrested  and,  his  identity  having  been  discov- 
ered, was  placed  in  arrest  to  serve  out  his  sentence,  and  the  civil 
authorities  presented  a  warrant  for  his  arrest  for  a  crime  committed 
after  his  escape.     Held,  that  the  soldier  should  not  be  surrendered. 

So  also  wdiere  before  his  enlistment  a  soldier  had  committed  a 
crime  for  which  he  had  been  sentenced  to  the  penitentiary,  and  while 
out  of  the  penitentiary  on  a  conditional  pardon  left  the  State  in 
violation  of  its  terms  and  enlisted  in  the  military  service,  and  was 
dishonorably  discharged  therefrom  pursuant  to  the  sentence  of  a 
general  court-martial.  Held,  that  under  the  above  rule  of  comity 
he  should  not  be  surrendered  to  the  civil  authorities.  (C.  28963, 
Nov.  11,  1911.) 

(C.  23264,  May  24,  1912.) 


DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.  5 

CIVILIAN  EMPLOYEES:  Civil  service;  removal  of. 

So  Jono-  as  a  civil-service  employee  is  fit  for  service  and  is  perform- 
ing his  duty  efficiently  within  the  meaning  of  rides  5  and  12,  Civil 
Ser-vice  Regulations  of  February,  1912,  he  can  not  be  removed  from 
office  on  the  ground  that  he  is  subject  to  a  disability  which  would 
inci-ease  the  possibility  of  an  accident  for  which  the  United  States 
would  be  liable  under  the  act  of  Mav  30,  1908  (35  Stat.,  556). 

(C.  23069,  Mar.  27,  1912.) 


CLAIMS:  Assignment  of,  section  3477,  Revised  Statvites. 

The  Government  had  a  contract  with  the  Helena  Waterworks  Co. 
whereby  the  latter  agreed  to  supply  the  Army  post  near  the  city  of 
Helena,  Mont.,  with  water  and  to  renew  the  agreement  annually 
within  a  certain  stated  period.  In  a  suit  in  the  Federal  court  the 
company's  affairs  were  placed  in  the  hands  of  a  receiver,  and  that 
official,  under  the  order  of  the  court,  sold  the  property  of  the  company, 
including  a  claim  against  the  United  States  for  water  furnished,  to 
the  Old  Colony  Trust  Co.  Ilelcl^  that  payment  of  the  accrued  claim 
for  water  fui-nished  by  the  said  company  to  the  United  States  should 
be  made  to  the  assignee,  the  Old  Colony  Trust  Co.,  as  the  transfer  of 
the  claim  was  in  the  nature  of  an  involuntary  assignment  or  transfer 
by  operation  of  law  and  not  in  violation  of  section  3477,  Revised  Stat- 
utes, forbidding  the  transfer  of  claims  against  the  United  States. 

(C.  25394,  Mar.  30,  1912.) 


CLAIMS:  Claim    for    cattle  killed   where    troops   liad   removed   a   fence   on 
leased  land. 

The  United  States,  having  leased  land  for  maneuver  purposes, 
later  vacated  the  premises,  the  landlord  accepting  the  return  of  the 
same  in  the  condition  in  which  the  troops  left  them,  and  receiving 
compensation  for  certain  assessed  damage,  including  that  to  fences. 
Two  days  after  the  premises  had  been  vacated  by  the  United  States 
three  head  of  cattle  strayed  therefrom  onto  the  railroad  and  were 
killed.  The  landlord  who  owned  the  cattle  advanced  a  claim  against 
the  Government  for  the  value  of  the  same,  based  on  the  allegation 
that  the  cattle  had  been  killed  because  a  portion  of  a  fence  had  been 
removed  by  the  troops.  Held.,  that  the  claim  was  inadmissible,  as 
the  damage  accrued  after  the  Government  had  relinquished  the 
premises,  and  further  because  the  landlord  having  accepted  settle- 
ment for  damage  to  his  fences  had  by  so  doing  accepted  responsibility 
for  them  in  the  condition  in  wdiich  they  were  left. 

(C.  23472,  May  1,  1912.) 


CONTRACTOR:  Delays  by;  exclusion  from  future  bidding. 

Where  a  contractor  completed  its  contract,  after  unjustifiable  delay 
and  attempts  to  evade  the  contract  requirements,  on  the  recommenda- 
tion that  the  contractor  be  debarred  from  further  w^ork,  under  G.  O. 
167,  War  Department,  October  10,  1905.     Held.,  that  there  was  not 


6  DIGEST    OF    OPTXIOXS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

such  failure  to  fulfill  the  contract  as  is  contemplated  in  said  general 
oi-ders,  but  that,  in  letting  future  contracts  on  which  this  contractor 
might  "submit  the  lowest  bid,  it  would  be  proper  to  consider  the  facts 
above  stated  in  determining  whether  such  bid  should  be  considered 
the  lowest  and  hest  bid. 
(C.  2948-2,  Mar.  i,  1912.) 

CONTRACTS:  Advertising;  accepting  next  higher  bid. 

Where  two  bids  Avere  received  by  the  Signal  Corps  for  deep-sea 
(•al)ie.  but  the  superiority  of  the  cable  offered  at  the  higher  bid  moro 
than  compensated  the  difference  in  price,  it  was  held  that  the  higher 
bid  might  be  accepted  as  being  the  lowest  and  best  bid  for  the  Gov- 
ernment, ha  vino-  regard  to  the  quality  of  the  cable  to  be  secured. 

(C.  29451,  Fd).  17,  1912.) 

CONTRACTS:  Advertising;   alteration  of  bids. 

The  day  before  bids  for  the  manufacture  of  certain  overcoats  were 
to  be  opened,  telegraphic  request  was  sent  to  all  who  had  presented 
bids  to  make  other  bids  upon  a  coat  with  a  material  alteration  from 
the  kind  required  in  the  original  advertisement.  Held^  that  the  law 
requiring  all  purchases  of  supplies,  except  in  certain  specified  cases, 
to  be  made  only  after  due  adAertisement,  requires  a  notice  that  will 
roach  the  general  public  or  that  portion  of  it  engaged  in  the  manufac- 
ture or  sale  of  the  particular  articles  wanted,  and  for  a  sufficient 
length  of  time  to  allow  for  the  making  of  bids,  and  said  law  was  not 
complied  with  under  the  conditions  stated.  It  is  recommended  that 
all  bids  received  in  response  to  such  telegraphic  notice  be  rejected. 

(C.  29470,  Feb.  28,  1912.) 


CONTRACTS:  Advertising;  increasing  quantities. 

Where  an  ad^^ertisement  was  made  for  building  material  for  5  sets 
of  field  officers'  quarters  and  19  double  sets  of  company  officers'  quar- 
ters, subject  to  an  increase  or  decrease  of  20  per  cent,  and  after  bids 
Avere  receiA-ed  it  was  proposed  to  make  contracts  for  material  for  11 
and  83  sets,  respect iA'ely.  Held^  that  such  a  contract  would  not  be  in 
accordance  with  the  adA-ertisement  and  would  not  be  a  compliance 
with  the  laAv  requiring  advertising  for  such  supplies.  Held^  how- 
ever, that  if  it  be  determined  that  there  is  such  an  exigency  as  will 
not  permit  of  the  delay  incident  to  readvertising  there  Avould  be  no 
legal  objection  to  the  proposed  contract. 

(C.  29600,  Apr.  11,  1912.) 


CONTRACTS:  Construction   of;   "corner  pins"   on   cross  arms   of  electric- 
lighting  system. 

The  contract  for  an  electric-lighting  system  provided  that  the  pins 
on  the  cross  arms  of  the  poles,  "  except^  corner  pins,  shall  be  of  the 
best  locust."  On  claim  by  the  contractor  for  extra  compensation  for 
])eing  required  to  furnish  iron  pins  at  the  ends  of  the  lines  and  also 
where  angles  occurred.  Held,  that  the  term  '*  corner  pins  "  Avas  prop- 
erly construed  by  the  supervising  inspector  as  including  a  considerable 


DIGEST   OF    OPINTOXS    OF    THE   JUDGE   ADVOCATE   GENERAL.  7 

change  in  direction  (see  Clirhflan  v.  Gernt  (Tenn.).  04  S.  W.,  399, 
401),  but  that  the  term  woukl  not  include  pins  on  the  cross  arms  at 
the  ends  of  the  lines. 

(C.  -29482,  Mar.  4,  191-2.) 


CONTRACTS:  Delays  in  performance;  adjustment  of  unliquidated  damages. 

A  firm  had  a  contract  for  the  construction  of  the  principal  build- 
ings at  the  Fort  Sill,  Okla.,  new  artillery  post,  and  others  had  con- 
tracts for  doing  varions  work  in  said  buiklings  and  about  the  post, 
dependent  upon  the  construction  or  progress  of  construction  of  said 
buildings.  The  principal  contractoi's  dehij^ed  the  execution  of  their 
work,  thereby  causing  delay  and  loss  to  the  other  contractors.*  Held., 
that  such  losses,  in  so  far  as  the  Ignited  States  might  be  answerable 
for  them,  Avere  unliquidated  damages  for  breach  of  contract  which 
the  executive  officers  have  no  jurisdiction  to  settle  or  allow  (17  Com)). 
Dec,  810;  Cramf  &  Sons  v.  U.  S.,  216  U.  S.,  494)  ;  but  the  probable 
amount  of  such  losses  for  which  the  Government  might  be  liable  in 
an  action  on  the  contracts  should  be  retained  from  the  contract  ])rice 
in  settling  with  the  contractors  whose  delays  occasioned  the  losses, 
as  a  protection  to  the  United  States. 

(C.  27675,  Mar.  7,  1912.) 


CONTRACTS:  Indemnity  against  infringement  of  patent. 

Where  the  United  States  having  a  license  to  manufacture  or  have 
manufactured,  for  the  use  of  the  United  States,  Army  field  bake 
ovens  covered  by  a  particular  patent,  entered  into  a  contract  Avith  a 
private  firm,  which  made  no  claim  to  any  rights  in  the  premises,  f(U' 
the  manufacture  of  the  ovens  according  to  the  patent,  and  notice  was 
served  on  the  manufacturer  that  the  oven  covered  by  said  contract 
was  an  infringement  of  another  patent  for  an  improved  camp  oven. 
Held,  that  in  the  light  of  these  facts,  although  there  was  no  express 
provision  in  the  contract  that  the  United  States  would  indemnify 
the  contractor  against  claims  for  infringement  of  other  patents,  there 
Avould  be  an  implied  obligation  to  do  so,  under  the  rule  that  where 
an  act,  not  apparently  illegal  in  itself,  is  done  under  the  express 
directions  of  the  other  party  to  a  contract,  and  occasions  injury  to 
the  rights  of  third  persons,  the  party  doing  the  act  is  entitled  to 
indemnity  against  the  consequences  of  the  act,  provided  it  is  done 
honestly  and  bona  fide  in  compliance  with  directions.  (22  Cyc,  95; 
King  v.  United  States,  1  Ct.  Cls.,  38.)  Held  further,  that  there  was 
clearly  no  ol)ligation  on  the  part  of  the  contractors  to  proceed  with 
the  contract  if  by  so  doing  they  would  render  themselves  liable  for 
infringement,  without  provision  for  reimbursement  by  the  United 
States,  and  that  the  urgent  need  of  the  Government  for  the  ovens 
would  make  it  to  the  interest  of  the  United  States  to  enter  into  a 
supplemental  contract  with  them  whereby  the  Government  would 
expressly  undertake  to  indemnify  them  against  any  claims  for  in- 
fringement of  the  patent  rights  of  other  patentees. 

(C.  25188,  Apr.  8,  1912.) 


8  DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE    GENEEAL. 

CONTRACTS:  Sufficiency  of  notice  to  make  delivery  of  articles  purchased. 

A  contract  provided  for  the  delivery  of  a  certain  amount  of  grain 
to  the  United  States  in  quantities  ordered  by  the  depot  quarter- 
master, that  portion  delivered  prior  to  December  31  to  be  paid  for  at 
a  certain  rate,  while  the  portion  delivered  afterwards  was  to  be  paid 
for  at  a  higher  rate.  Notice  was  given  in  the  latter  part  of  December 
for  delivery  during  that  month  of  the  entire  balance  of  grain  due 
imder  the  contract."  Delivery  was  not  made  until  after  December,  and 
compensation  was  claimed  at  the  higher  rate  upon  the  ground  that 
there  was  not  sufficient  time  after  notice  for  making  delivery  in 
December,  and  that  even  if  delivery  had  been  tendered  in  that  month 
the  Government  was  not  in  position  to  receive  it.  Held.,  that  it  was 
the  duty  of  the  Government  to  have  given  notice  for  the  delivery  of 
the  grain  in  suflicient  time  to  have  permitted  its  delivery  within  the 
month  of  December,  and  if  it  did  not,  and  delivery  was  accepted, 
after  that  month,  payment  for  the  grain  delivered  should  be  made  at 
the  prices  provided  for  in  the  contract  for  deliveries  at  the  time 
when  they  were  actually  made;  and  further,  that  the  Government 
should  also  have  been  in  a  position  to  have  received  the  grain  in 
December,  if  tendered,  in  order  to  have  availed  itself  of  the  prices 
fixed  for  December  deliveries. 

(C.  29573,  Apr.  3,  1912.) 


COURTS-MARTIAL:  Discipline;  reviewing  authority.     • 

The  action  of  a  reviewing  authority  in  approving  a  sentence  of  a 
general  court-martial  and  simultaneously  remitting  a  portion  thereof 
is  legally  equivalent  to  approving  only  the  sentence  as  reduced. 

(C.  23038,  May  2,  1912.) 


DESERTER:  Reward  for  apprehension;  additional  expenses. 

A  sheriff  of  one  of  the  Hawaiian  Islands  transported  a  deserter 
from  the  United  States  Army  to  Honolulu  where  he  was  delivered 
to  the  military  authorities,  and  in  so  doing  expended  a  sum  very 
nearly  equal  to  the  $50  reward  authorized  for  the  apprehension  and 
delivery  of  deserters.  On  submission  of  the  question  as  to  whether 
there  were  any  means  by  which  the  expenses  might  be  paid  and  the 
sheriff  receive  the  full  rew^ard.  Held,  that  the  $50  reward  authorized 
by  Army  Eegulations,  made  in  pursuance  of  law,  for  the  return  of 
deserters  from  the  United  States  Army,  must  include  all  expenses 
of  apprehending  and  bringing  the  deserter  to  the  nearest  military 
post  or  to  a  place  agreed  upon ;  but  that  there  is  no  restriction  placed 
upon  the  cost  of  the  journey  of  an  armed  party  sent  to  receive  the 
person  arrested  and  held  as  a  deserter. 

(C.  1T327-B,  Feb.  15,  1912.) 


DESERTERS:  Reward  for  apprehension;  claim  of  policeman  fo^  arresting" 
deserter  after  he  had  surrendered  to  military  authority. 

AVhere  a  deserter  had  surrendered  to  a  recruiting  sergeant,  had 
been  placed  in  arrest,  paroled  to  a  given  date,  and  while  at  large 
under  such  parole  was  arrested  as  a  deserter  by  a  police  officer  who 


/ 


DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.  9 

claimed  to  believe  that  the  deserter  intended  to  escape.     Held^  that 
the  police  officer  was  not  entitled  to  the  reward  for  the  apprehension 
and  delivery  of  a  deserter. 
(C.  173Ln,  May  29,  1912.) 


DESERTERS:  Reward  for  apprehension;  confined  in  prison. 

A  bcrtillion  clerk  at  a  State  penitentiary  informed  the  military 
authorities  that  a  prisoner  at  that  institution  was  probably  a  de- 
serter, which  information  led  to  his  apprehension  and  arrest  by  said 
authorities  immediately  upon  the  termination  of  his  term  of  imprison- 
ment. The  other  penitentiary  officers  did  nothing  more  than  turn  the 
prisoner  over  to  the  military  authorities  at  the  end  of  his  term,  and 
disclaimed  any  interest  in  the  reward.  Held^  that  the  person  furnish- 
ing the  information  was  entitled  to  the  entire  reward  offered  for  the 
return  of  the  deserter  and  that  it  was  not  necessary  that  he  should 
personally  have  made  the  arrest  and  delivery  to  the  military  au- 
thorities. 

(C.  17327-B,  Feb.  9,  1912.) 


DESERTERS:    Reward    for    apprehension;    delivered    as    absent    without 
leave,  but  tried  for  desertion. 

Where  a  police  officer  delivered  to  the  military  authorities  a  sol- 
dier as  having  been  absent  without  leave,  but  wdio  was  later  deemed 
by  those  authorities  to  be  a  deserter  and  was  tried  as  such.  Ueld., 
that  the  police  officer  is  entitled  to  a  reward  as  having  apprehendecl 
and  delivered  a  deserter,  and  this  though  the  soldier  was  acquitted 
of  desertion  and  convicted  of  absence  without  leave  only. 

(C.  17327-B,  Apr.  17,  1912.) 


DISCIPLINE:  Punishment  in  reducing  from  first-class  private. 

The  maximum  punishment  order  provided  that  for  certain  offenses 
first-class  privates  might  be  reduced  to  second-class  privates.  Pur- 
suant to  this  order  a  hrst-class  private  of  the  Signal  Corps  was  sen- 
tenced to  "  be  reduced  from  firt-class  private  to  second-class  private." 
At  the  time  the  only  privates  in  the  Signal  Corps  w^ere  "  first-class 
privates ""  and  ''  privates."  There  w^ere  no  "  second-class  privates.*' 
Held^  that  as  the  only  gi'ade  below"  that  of  first-class  private  was 
private,  the  effect  of  the  sentence  was  to  reduce  the  soldier  to  the 
grade  of  private. 

(C.  3094,  May  20,  1912.) 


EIGHT-HOUR  LAW:  Government  employees;  extraordinary  emergency. 

Under  the  act  of  August  1.  1892  (27  Stat..  310),  it  does  not  con- 
stitute a  sufficient  statement  of  an  extraordinary  emergency  to  re- 
port merely  that  a  laborer  or  mechanic  was  employed  overtime  on 
account  of  *'  working  aloft  as  rigger,"'  "  extra  attention  required  to 
floating  plant,"  "  repairing  derrick,"  "  repairing  machinery  of  work- 


10  DiCiEST    OF    OPIXIOX.S    OF    THE    JUDGE    ADVOCATE    GENERAL. 

iii<r  plant."  or  "malving  necessary  repairs  to  machinery/*  An  emer- 
gency is  an  event  or  occasional  combination  of  circiuiistances  which 
calls' for  immediate  action  or  remedy,  and  the  report  of  an  extraor- 
dinary emergency,  required  by  paragraph  742,  Army  Regulations, 
1910.  should  sho\v  that  conditioris  demanded  innnediate  action  or 
remedy. 

[C.  201G9-C.,  Feb.  2,  1012.) 


EMPLOYEES:  Presents  to  official  superiors. 

Section  17S4,  Eevised  Statutes,  provides  that  no  officer,  clerk,  or 
employee  in  the  Goyernment  service  shall  solicit  contributions  from 
officers,  clerks,  or  employees  in  the  same  service  for  a  gift  or  a 
present  to  any  one  in  a  superior  official  position,  and  prohibits  any 
such  official  or  clerical  superior  from  accepting  any  such  present. 
field,  that  the  forelady  in  the  tent  department  of  the  Philadephia, 
Pa.,  depot  of  the  Quartermaster's  Department,  who  only  has  the  duty 
of  distributing  work  among  employees  and  superintending  its  execu- 
tion, is  not  an  official  or  clerical  superior  nor  a  person  occupying  ti 
superior  official  position  within  the  meaning  of  said  statute,  and  does 
not  violate  its  provisions  by  accepting  presents  from  employees  under 
her  direction  Avhich  have  been  paid  for  with  money  raised  by  volun- 
tai-y  subscription  among  such  employees,  nor  does  the  employee  who 
solicits  such  subscription  thereby  violate  said  statute. 

(C.  29736.  May  29,  1912,  p.  13!) 


ENLISTED  MEN:  Engaging'  in  commercial  business;  hiring  out  automo- 
biles. 

Complaint  having  been  made  that  certain  enlisted  men  owning 
automobiles  at  a  post  were  letting  them  out  for  hire  and  were  com- 
peting with  a  regular  stage  line  between  the  post  and  a  neighboring 
\illage.  Held,  that  while  enlisted  men  do  not  by  enlistment  lose 
their  rights  as  citizens  to  engage  in  commercial  business,  and  while 
there  is  no  objection  to  their  owning  automobiles  and  allowing  others 
to  use  them  for  hire.  yet.  for  military  reasons,  they  should  not  be 
permitted  to  maintain  anything  in  the  nature  of  a  regular  system  of 
transportation  for  gain. 

(C.  29167,  Feb.  29,  1912.) 


GRATUITY:   Deceased  officers  and  soldiers;    carelessness  or   accident  not 
misconduct. 

In  yi\  il  actions  to  recover  damages  from  a  defendant  on  account 
of  mjuries  caused  by  the  defendant's  negligence,  the  rule  is  that  if 
the  plamtiff  has  failed  to  exercise  that  reasonable  degree  of  care  and 
diligence  which  a  person  of  ordinary  prudence  and  capacity  might 
l)e  expected  to  exercise  under  similar  circmnstances,  he  isliimself 
guilty  of  contributory  negligence  and  can  not  recover  from  the  de- 
fendant. But  in  cases  arising  under  the  act  of  Mav  11,  1908  (35 
Stat.,  108).  as  amended  by  the  act  of  March  3,  1909  (35  Stat.,  735), 
which  provides  for  the  payment  to  certain  beneficiaries  of  a  gratuity 


DIGEST    OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.  11 

eqiial  to  six  months"  pay  of  an  officer  or  enlisted  man  on  notice  of  his 
death  from  wounds  or  disease  "not  tiic  result  of  his  own  miscon- 
duct,'" the  ahove  rule  preventing  recovery  in  case  of  contributory 
negligence  can  not  be  applied  as  a  test  of  whether  six  months"  pay 
shall  be  paid  to  the  benehciary  of  the  deceased  otlicer  or  soldiei-. 
This  is  for  the  reason  that  '"misconduct,"  which  is  the  test  applied 
by  the  above  acts,  implies  something  in  the  nature  of  intentional 
wrongdoing,  the  transgression  of  some  established  rule,  military, 
civil,  or  moral,  or  a  reckless  disregard  of  one's  safety,  etc.  Careless- 
ness or  an  accident  on  the  part  of  the  deceased  officer  or  soldier  not 
amounting  to  "  misconduct "  will  not  defeat  payment  to  the  bene- 
ficiary. 

(d  23666,  June  25,  1912.) 

GRATUITY:  Payable  on  death  of  soldier;  soldier's  misconduct. 

Where  a  soldier  absent  from  his  station,  whether  with  or  witliout 
leaA'e,  trespasses  upon  private  property,  he  assumes  the  risk  of  injury 
resulting  from  such  a  trespass,  and  such  an  injury  would  be  not  in 
line  of  duty  and  would  be  the  result  of  his  own  misconduct. 
(C.  23666,  Aug.  1,  1909;  Oct.  4,  1910.)  The  determination  whether 
a  soldier's  death  while  trespassing  on  tracks  of  a  railroad  company 
is  in  line  of  duty  or  results  from  his  own  misconduct  in  a  given 
case,  does  not  in  any  way  depend  on  the  liability  of  the  company 
to  the  soldier  for  damages.  (C.  23666,  Sept.  19,"^  1910.)  Nor  docs 
it  depend  on  whether  the  soldier  was  violating  a  military  rule  or 
regulation,  but  rather  does  it  depend  on  the  quality  or  condition  of 
the  act  itself  of  the  soldier. 

(C.  23666,  Feb.  29,  1912,  citing  2  Pension  Decisions,  232.) 


MEDICAL  ATTENDANCE:   Seamen  in  the  Army  Transport  Service;   ap- 
propriations. 

A  seaman  in  the  Army  Transport  Service  was  sent  to  an  Army 
hospital  ashore  for  temporary  treatment.  lield^  that  seamen  in  the 
United  States  Army  Transport  Service  are  entitled  under  their  con- 
tract of  employment  to  all  the  benefits  which  usually  pertain  to  the 
ser^•ice  of  a  seaman,  or  which  may  be  provided  for  vsuch  service  by 
regulation,  which  include  needful  medicines  and  medical  attend- 
ance; and  when  one  receives  treatment  ashore  by  authority  of 
the  officers  of  the  vessel  on  which  he  is  engaged,  the  expenses  there- 
for are  a  charge  against  the  United  States.  Held  further^  that  the 
appropriation  for  medical  attendance  and  supplies  under  the  contiol 
of  the  Medical  Department  is  chargeable  with  the  expenses  of  such 
treatment,  said  appropriation  being  moi-e  specific  as  to  this  purpose 
than  that  for  the  transportation  of  the  Army  to  which  the  service  is 
incidental. 

(C.  21389,  May  28,  1912.) 


MILITARY  ACADEMY:  Reappointment  of  cadet  under  seciton  1325,  Re- 
vised Statutes. 

Where  a  cadet  had  been  found  deficient  and  recommended  for  dis- 
charge by  the  Academic  Board  and  had  as  a  result  been  discharged. 


12  DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEEAL. 

lleld^  that  under  section  1325,  Revised  Statutes,  the  former  cadet, 
although  he  had  pa.ssed  the  age  fixed  for  original  admission  to  the 
Academy,  might  be  reappointed,  as  section  1325,  Revised  Statutes, 
shows  no  age  requirem.ent  and  clearly  has  for  its  intent  not  to  permit 
one  who  has  been  a  cadet  to  commence  or  recommence  his  career 
at  the  Military  Academy,  but  to  continue  it. 
(C.  16602,  Mar.  22,  1912.) 


MILITAKY  RESERVATIONS:  Power  of  tlie  President  over  public  lands. 

Any  military  reservation,  whether  so  designated  by  presidential 
or  congressional  authority,  which,  in  the  opinion  of  the  President, 
has  become  useless  for  military  purposes,  may  be  turned  over  to 
the  control  of  the  Secretary  of  the  Interior  for  disposition  under  the 
act  of  July  5, 1884  (23  Stat.,  103),  and  may,  either  before  or  after  the 
turning  over  of  the  same  to  the  control  of  the  Secretary  of  the 
Interior  and  before  disposition  thereof,  be  set  aside  by  him  for  some 
other  public  purpose  in  the  same  manner  as  other  public  lands. 

(C.  29379,  Apr.  6,  1912.) 


MILITIA:   Accounting'  for  tent  equipage  used   by   the   governor   of   the 
State  for  the  relief  of  flood  sufferers. 

The  governor  of  the  State  of  Arkansas  loaned  to  the  sufferers  from 
the  Mississippi  floods  certain  tent  equipage  Avhich  had  been  issued 
to  the  State  by  the  United  States  for  the  use  of  the  organized  militia, 
and  thereafter  requested  an  additional  issue  of  such  equipment  for 
the  use  of  said  militia,  in  view  of  the  fact  that  it  w^as  uncertain  when 
the  State  would  receive  back  the  tentage  so  loaned,  and  also  whether 
w^hen  received  back  it  would  be  in  condition  for  use.  Held^  that 
supplies  and  equipage  issued  to  the  several  States  for  the  use  of 
the  militia  thereof  and  paid  for  from  the  appropriations  under 
section  1G61,  Revised  Statutes,  remain  the  property  of  the  United 
States  until  consumed,  and  that  the  Government  might  take  over 
said  tentage  at  its  actual  value  when  turned  over  for  the  use  of  the 
flood  sufferers  and  continue  to  use  the  sam.e  for  the  relief  of  said 
sufferers,  crediting  the  State's  allotment  from  said  appropriation  and 
charging  the  appropriation  available  for  the  purchase  of  tentage  for 
such  purpose. 

(C.  29692,  May  13,  1912.) 


MILITIA:  Machine-gun  organiations. 

Section  3  of  the  militia  law  of  January  21,  1903  (32  Stat.,  775), 
provided  that  the  organization,  armanent,  and  discipline  of  the  Or- 
ganized IMilitia  shall  be  the  same  as  that  prescribed  for  the  Regular 
A^m3^  ^This  section  was  amended  by  section  2  of  the  act  of  May  27, 
1908  (.35  Stat.,  399),  by  adding  the  words  "subject  in  time  of  peace 
to  such  general  exceptions  as  may  be  authorized  by  the  Secretary  of 
War."  Beld^  That  this  exception  is  broad  enough  to  include  machine- 
gun  units  or  organizations  containing  additional  commissioned  offi- 
cers and  enlisted  men  to  those  prescribed  for  batteries  in  the  Regular 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE    GENERAL.  13 

Army,  and  the  officers  and  men  are  entitled  to  be  paid  as  a  part  of 
the  Organized  Militia  while  rendering  service  otherwise  entitling 
them  to  such  pay,  jn-ovided  that  said  organizations  are  uniform  so  as 
to  make  the  exception  general. 
(C.  14148-1,  June  4,  1912.) 


MILITIA:  Officer  of  the  Army  detailed  as  instructor  and  inspector. 

An  officer  of  the  Army  was  detailed  as  instructor  and  inspector  for 
the  Organized  Militia  of  the  State  of  California,  under  the  provisions 
of  the  act  of  March  3,  1911  (36  Stat.,  1045).  On  reporting  to  the 
governor  of  the  State  he  was  directed  by  him  to  proceed  from  Sacra- 
mento to  San  Francisco,  in  said  State,  for  the  performance  of  duties 
in  connection  with  the  Organized  Militia.  Ileld^  that  the  expense  of 
his  transportation  from  Sacramento  to  San  Francisco,  being  incident 
to  his  service  to  the  militia  and  not  to  his  service  to  the  United 
States,  is  not  a  charge  against  the  United  States,  and  the  officer  must 
look  to  the  State  for  reimbursement. 

(C.  14148,  June  15.  1912;  see  also  Decision  of  the  Assistant  Comp- 
troller of  the  Treasury  of  Mar.  18,  1912.) 


MILITIA:  Officers  of  the  Regular  Army  holding  commission  in. 

While  an  officer  in  the  Regular  Army  is  not  precluded  by  section 
1222,  Revised  Statutes,  from  holding  office  in  the  Organized  Militia 
of  a  State,  yet  where,  by  the  laws  of  a  State,  he  can  not  be  so  com- 
missioned as  to  permit  his  release  at  the  will  of  the  Secretary  of  War 
from  his  obligations  as  a  militia  officer,  advised,^  that  the  officer  be  not 
granted  permission  to  accept  such  militia  appointment. 

(C.  14148-1,  June  15  and  17,  1912.) 


MILITIA:   Officer  on  active  list  in  the  Regular  Army  holding   office  in; 
compatibility;  holding  two  offices. 

Held,  that  an  office  in  the  Organized  Militia  of  a  State  is  a  military 
and  not  a  civil  office  and  that  an  officer  of  the  Regular  Army  on  the 
active  list  is  not  precluded  from  holding  a  commission  in  the  Organ- 
ized Militia  by  section  1222,  Revised  Statutes,  which  prohibits  such 
officer  from  holding  or  exercising  the  functions  of  any  civil  office. 
Held  further,  that  the  office  held  by  a  commissioned  officer  in  the 
regular  service  and  that  held  by  a  commissioned  officer  in  the  State 
militia  are  not  legally  incompatible  and  may  be  held  by  the  same  per- 
son, but  that  State  laws  might  impose  conditions  rendering  it  im- 
practicable or  impossible  for  the  officer  to  hold  both  positions  at  the 
same  time.  Held  further,  that  under  the  act  of  July  31,  1894  (28 
Stat.,  205),  which  provides  that — 

"  No  person  who  holds  an  office  the  salary  or  annual  compensation 
attached  to  which  amounts  to  the  sum  of  two  thousand  five  hundred 
dollars  shall  be  appointed  to  or  hold  any  other  office  to  which  com- 
pensation is  attached  unless  specially  heretofore  or  hereafter  specially 
authorized  thereto  by  law ;  but  tliis  shall  not  apply  to  retired  officers 


14  DIGEST   OF    OPIXIOXS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

of  the  Arm}'  and  Xavv  whenever  they  may  be  elected  to  public  office 
oi-  w  hene\er  the  President  shall  appoint  them  to  office  by  and  with  the 
ad\ice  and  consent  of  the  Senate." 

a  I\e<rnlar  Army  officer  may  acce]^t  a  commission  in  the  State  militia, 
as  "  anv  other  office  ''  refers  to  a  Federal  office  only. 
(C.  ->0^73,  Nov.  i>8,  1911.) 


MILITIA:  Use  of  outside  of  the  United  States. 

Under  existing  law  the  President  is  not  authorized  to  call  out  the 
Organized  Militia  of  the  States  and  send  it  into  a  foreign  country 
with  the  Regular  Army  as  a  part  of  an  army  of  occupation,  espe- 
cially w^here  the  United  States  should  intervene  in  the  affairs  of 
another  nation  under  conditions  not  involving  actual  war. 

(C.  14U8-I,  Dec.  -20,  1911.) 


NAVIGABLE  WATERS:  Construction  of  term  "Appurtenances." 

Where,  by  act  of  Congress  approved  June  25,  1910  (36  Stat.,  640), 
the  Secretary  of  War  was  authorized  to  enter  into  contract,  subject  to 
''  ratification  and  appropriation  by  Congress,''  for  the  purchase  of  a 
canal  ''together  with  all  property,  rights  of  property,  and  all  fran- 
chises appertaining  thereto,"  and  the  canal  company,  while  agreeing 
to  include  in  the  agreement  lands  of  ample  width  for  the  canal 
right  of  way,  and  all  property  needed  for  the  purpose,  withheld  lands 
owned  by  it  alongsicle  the  same  as  not  properly  pertaining  to  the 
canal,  Held^  that  as  it  was  probably  not  the  intent  of  Congress  to 
require  a  conveyance  of  lands  not  needed  or  used  in  connection  with 
the  canal,  and  as  the  word  "  appurtenances "  is  susceptible  of  a 
broad  or  a  restricted  meaning  according, to  the  context  of  the  sub- 
ject matter,  the  agreement  as  executed  by  the  company  should  be 
approved,  subject  to  ratification  bv  Congress. 

(C.  ■294-1.5,  Feb.  17,  1912.) 


PAY  OF  OFFICERS:  Officers  serving  abroad  by  special  authorization  of 
Congress. 

An  officer  of  the  Army  was  authorized  by  a  special  resolution  of 
Congress  to  accept  employment  under  the  Chilean  Government. 
Held^  that  he  is  in  the  position  of  an  officer  awaiting  orders  at  a  place 
of  his  own  selection,  and  is  entitled  during  the  period  of  such  service 
to  the  ordinary  pay  of  his  grade,  not  including  additional  pay  for 
foreign  service,  but  is  not  entitled  to  any  allowances. 

(C.  29481,  June  15,  1912.) 


POST  EXCHA:^GE:  Responsibility  for  money  collected  at  pay  table  and 
due  to  an  exchange. 

Where  a  company  of  infantry  had  been  temporarily  stationed  near 
a  post  wiiich  maintained  an  exchange  and  the  men  of  the  company 
had  been  allow  ed  credit  thereat,  but  had  left  the  neighborhoo<l  before 
pay  day  and  subsequently  paid  the  amount  of  their  exchange  in- 


DIGEST   OF   OPIXIOXS   OF    THE    JUDGE    ADVOCATE   GENERAL.  15 

del)te(lnoss  to  their  company  coinmanJer.  Held,  tliat  the  post  ex- 
chano-e  must  look  to  the  company  commander  for  the  money  due  it, 
and  that  the  fact  that  he  did  not  pay  it  over  could  not  serve  to 
render  the  enlisted  men  liable  for  a  second  payment.  The  confickMice 
of  enlisted  men  in  their  superior  officers  should  not  be  shaken  by 
even  the  suggestion  that  where  they  have  in  good  faith  reposed  con- 
fidence in  such  superior  officer  they  should  be  told  that  they  tlid  so 
at  their  peril. 

(C.  29G5G,  Apr.  P.O,  1012.) 


PRIVATE  MILITARY  BODY :  Assuming'  the  name  of  "  U.  S.  Volunteers." 

Where  a  private  signal  corps,  to  be  maintained  independently  of 
State  or  national  aid,  asked  whether  there  was  any  reason  why  it 
should  not  assume  the  title  of  "  U.  S.  Volimteers."  Ueld^  that  tliere 
was  no  Federal  law  which  would  prevent  the  use  of  that  or  any 
other  name  by  such  an  organization;  but  advised  that  the  good  taste 
and  good  faith  involved  in  the  assumption  of  the  name  of  an  organi- 
zation which  clearly  is  not  national  in  its  character  nor  in  any  sense 
connected  with  the  United  States  would  seem  questionable. 

(C.  29058,  May  1,  1912.) 


PUBLIC  PROPERTY:  Donation  of  personal  property  to  the  United  States. 

I^pon  question  being  raised  as  to  the  authority  of  the  War  Depart- 
ment to  permit  abutting  landowners  to  string  additional  wires  on 
the  Government  fence  around  the  militarj^  reservation  of  Leon 
Springs,  Tex.,  to  make  the  fence  more  secure  for  their  stock,  under 
an  agreement  that  the  wires,  when  so  placed,  should  become  the 
property  of  the  United  States.  Held.,  that  in  the  absence  of  a  statute 
foriiidding  the  acceptance  of  donations  of  personal  property,  such  as 
applies  to  the  acceptance  of  voluntary  services  or  of  donations  of 
land,  there  is  no  legal  objection  to  the  permission  being  granted,, 
under  the  proposed  agreement,  it  appearing  tliat  such  per-mission 
^vould  be  in  the  interests  both  of  the  Government  and  of  the  abutting 
landowners. 

(C.  29257,  Mar.  9,  1912.) 


PUBLIC  PROPERTY:  Land  boundary;  commission;  res  judicata. 

Where  claim  was  made  that  a  military  reservation,  as  described  in 
the  reservation  oiiler,  included  land  of  the  claimant  estate,  and  it 
appeared  that  the  matter  of  the  boundary  had  been  determined  by 
a  boundary  commission  against  the  contention  of  the  claimant,  the 
decision  being  affirmed  on  appeal  by  the  supreme  court  of  the  Terri- 
tory. Held,  that  the  determination  so  made  should  be  regarded  as 
final,  and  that  possession  of  the  land  in  dispute  should  be  retained, 
leaving  the  claimant  to  his  remedy  at  law  to  recover  possession  of 
the  land.  Held  further,  that  even  if  the  question  were  a  doubtful 
one.  possession  should  be  retained  until  the  matter  should  be  judi- 
ciallv  determined  adverselv  to  the  United  States. 

(C.  19852,  Mar.  19,  1912.) 


IG  DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

PT7BLIC  PE.OPEKTY:  Real  estate;  title  to  reservations  conveyed  to  the 
United  States,  without  cost,  for  military  posts. 

Certain  reservations  were  conveyed  to  the  United  States  under 
acts  of  Congress  providing  that  upon  "  transfer  and  conveyance  to 
the  United  States  of  a  good  and  sufficient  title"  to  the  premises, 
"  Avithont  cost  to  the  United  States,"  military  posts  should  be 
"  established  and  located  on  said  "  lands.  The  deeds  recited  nominal 
considerations  and  purported  to  convey  a  fee  simple  title  free  and 
clear  of  all  incumbrances,  and  the  title  was  approved  by  the  Attor- 
ney General.  After  the  establishment  and  maintenance  of  the  posts, 
for  periods  varying  from  15  to  20  j^ears,  it  was  proposed  to  abandon 
them,  and  the  question  Avas  raised  as  to  whether  the  title  of  the 
United  States  to  the  lands  so  acquired  was  such  as  to  permit  of  the 
sale  of  the  same.  Held,  that  in  making  the  conveyances  the  grantors 
may  be  assumed  to  ha^e  understood  that  nothing  less  than  a  fee 
simple  title,  free  and  clear  of  all  incumbrances,  would  be  accepted 
by  the  Government ;  and  that,  such  being  the  case,  no  court  would 
reform  the  deeds  by  engrafting  thereon,  contrary  to  this  under- 
standing, limitations  of  the  title  to  the  purposes  for  which  the 
property  was  conveyed. 

Held  furiher,  that  even  if  the  facts  stated  be  regarded  as  amount- 
ing to  implied  conditions,  such  conditions  were  fully  satisfied,  on 
the  part  of  the  United  States,  when  the  posts  were  established  at  the 
places  specified,  with  no  intention  of  the  establishment  being  tem- 
]:)orary.  See  Mead  v.  Ballard  (7  Wall.,  290)  :  Harris  v.  Shdiv  (13 
111.,  463)  ;  Sumner  v.  Darnell  (13  L.  R.  A.,  173)  ;  Newton  v.  Cammis- 
siovers  (100  U.  S.,  548)  ;  that  there  was  nothing  in  the  acts  under 
which  the  posts  were  established  to  show  an  intention  to  bind  the 
Government  permanently  to  maintain  military  posts  at  these  loca- 
tions; and  that  as  to  such  reservations,  the  title  in  fee  is  in  the 
United  States  without  any  limitation  which  Avould  prevent  the  sale 
or  other  disposition  of  the  property  by  the  United  States  when  no 
longer  required  for  militarv  purposes. 

(C.  29379,  Mar.  6,  1912.)" 


PUBLIC  PROPERTY:  Title  to  real  property;  delivery  of  deed. 

Where  a  deed  was  executed  and  delivered  to  the  United  States, 
but  not  recorded,  for  the  donation  of  a  tract  of  640  acres  as  a  site 
for  a  military  post  at  Santa  Fe,  N.  Mex..  and  the  bill  for  authoriz- 
ing the  acceptance  of  a  site  at  that  place  was  not  passed  by  Congress, 
on  the  question  l^eing  raised  as  to  the  course  to  pursue  to  restore  the 
land  to  the  grantors.  Held,  that  in  view  of  the  provisions  of  section 
3736.  Revised  Statutes,  the  deed  was  inoperative  to  pass  any  title  to 
the  Government,  and  that  as  it  was  not  placed  on  record  it  would  be 
sufficient  to  return  it  to  the  grantors. 

(C.  1582,  Feb.  17,  1912.)   ^ 

SALE   OF  PUBLIC  PERSONAL  PROPERTY:   Sale  of   articles  of  medical 
equipment  to  Red  Cross. 

The  American  National  Red  Cross  having  requested  the  privilege 
of  purchasing  certain  articles  of  medical  equipment,  the  property 
of  the  United  States,  from  the  Medical  Department  of  the  Army. 


DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.  17 

Udd,  that  under  Article  IV,  section  3,  paragraph  2.  of  the  Constitu- 
tion, the  Congress  alone  has  the  right  to  dispose  of  the  public  prop- 
erty, whether  real  or  personal,  and  that  therefore  in  the  absence  of 
authority  from  Congress  the  request  of  the  American  National  Red 
Cross  could  not  be  granted.  (See  TJ .  S.  v.  NicoU,  Fed.  Cas.  No. 
15879;  and  IG  Op.  Atty.  Gen.,  p.  477.) 
(C.  16153,  May  28,  1912.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE   TREASURY. 

APPROPRIATIONS:   Public  buildings;  cost  of  plumbing  therein. 

Sundry  civil  appropriation  act  of  March  4,  1909  (35  Stat..  1004), 
for  the  fiscal  year  1910  provides : 

"  Cavalry  post,  Hawaii  Territory :  for  the  construction  of  the 
oiRcers'  quarters,  barracks,  storehouses,  etc.,  necessary  for  the  accom- 
modation of  headquarters  and  two  squadrons  of  cavalry,  $200,000." 

The  sundry  civil  appropriation  act  for  the  fiscal  year  1910  author- 
ized contracts  to  be  entered  into  for  a  greater  amount  than  that 
appropriated  for,  but  made  no  other  changes  in  the  conditions  or 
terms  of  the  appropriation. 

The  Army  aptpropriation  act  of  March  3,  1911  (36  Stat.,  1051), 
for  the  fiscal  year  1912,  under  the  heading  "  Water  and  Sewers  at 
Military  Posts,"  provides: 

"  For  procuring  and  introducing  water  to  buildings  and  premises 
at  such  military  posts  and  stations  as  from  their  situation  require 
it  to  be  brought  from  a  distance;  for  the  purchase  and  repair  of  fire 
apparatus;  for  the  disposal  of  sewage;  for  repairs  to  water  and 
sewer  systems  and  for  hire  of  employees,  $2,250,903.27." 

Upon  a  request  by  the  Secretary  of  War  for  a  decision  as  to 
whether  or  not  the  appropriation  for  the  construction  of  buildings 
at  the  cavalry  post,  Hawaii  Territory,  is  available  for  the  installa- 
tion of  plumbing  fixtures  therein  to  the  exclusion  of  the  use  for  the 
same  purpose  of  the  current  appropriation  for  water  and  sewers  at 
military  posts.  Held,  that  the  cost  of  plumbing  within  said  build- 
ings should  be  paid  from  the  appropriations  made  for  the  construc- 
tion of  the  same  and  not  from  the  appropriation  for  "  water  and 
sewers  at  military  posts." 

(18  Comp.  Dec,  612,  Feb.  12,  1912.) 


ENLISTED  MEN:   Continuous  service;  purchase  of  discharge. 

A  private  served  three  consecutive  enlistments  of  three  years  each 
in  the  Army,  and  enlisted  for  the  fourth,  but  purchased  his  discharge 
after  serving  less  than  half  his  term,  and  enlisted  in  the  Marine 
Corps.  Held,  that  the  time  served  in  the  uncompleted  enlistment 
period  in  the  Army  should  not  be  computed  in  making  up  the  fourth 
enlistment  period,  on  Avhich  he  entered  as  an  enlisted  man  of  the 
Marine  Corps. 

(18  Comp.  Dec,  714,  Mar.  20,  1912.) 

93668°— 17 2 


18  DIGEST   OF   OPIXIOXS   OF    THE   JUDGE   ADVOCATE   GEXEKAL. 

ENLISTED  MEN:   Six  months'  gratuity;  death  of  beneficiary. 

When  M  private  in  the  Marine  Corps  designates  his  father  as  his 
henetiriaiv  to  receive  the  six  months'  pay  under  the  provisions  of 
the  act  of  May  13,  1908  (35  Stat.,  1-28),  and  makes  no  designation 
of  an  ahernative  heneficiary,  and  after  the  private's  death  his  father 
dies  before  recei\  ing  the  six  months'  pay  gratuity,  such  pay  can  not 
he  paid  to  the  k\gal  rei)resentatives  of  the  beneficiary. 

(18  Comp.  Dec,  GGO,  Feb.  28.  11U2.) 


ENLISTMENT  IN  MARINE  CORPS:   When  it  becomes  effective. 

A  man  who  made  application  for  enlistment  in  the  Marine  Corps 
on  December  20,  1909,  and  successfully  passed  the  physical  examina- 
tion the  next  day,  but  who  was  not  accepted  in  the  service  and 
subjected  to  military  autliority  and  control  until  January  15,  1910, 
when  he  signed  the  contract  of  enlistment  and  was  sworn  in,  did 
not  enlist  until  the  later  date  and  is  not  entitled  to  pay  and  allow- 
ances of  an  enlisted  man  prior  to  that  time. 

(18  Comp.  Dec,  601,  Feb.  9,  1912.) 


EXTRA-DUTY  PAY:  Service  at  the  United  States  Military  Academy. 

Secti(m  1287,  Revised  Statutes,  and  the  act  of  March  3,  1885  (23 
Stat.,  359),  provide  for  the  payment  of  extra-dut^^  pay  to  soldiers 
performing  extra-duty  service,  and  the  appropriation  for  incidental 
expenses,  Quartermaster's  Department,  ]:)rovides  for  the  payment  of 
the  same;  but  the  act  of  March  2,  1907  (34  Stat,  1167), "provides 
that:  "Hereafter  no  part  of  the  moneys  appropriated  for  use  of  the 
Quartei-master's  Department  shall  be  used  in  payment  of  extra-duty 
pay  for  the  Arm}^  service  men  in  the  Quartermaster's  Department  at 
West  Point." 

The  ISIilitary  Academy  act  of  March  3,  1911  (36  Stat.,  1025-27), 
contains  appropriations  for  maintaining  the  children's  school  and  for 
carrying  on  tlie  de^■elopment  of  the  general  plan  for  improvements  to 
loads  and  grounds  on  the  military  reservation  at  West  Point.  Held^ 
that  enlisted  men  not  belonging  to  the  Army  service  detachment  at 
West  Point  who  are  detailed  and  employed  on  extra  duty  under  com- 
petent authority  in  connection  with  the  maintenance  of  the  children's 
school  or  the  improvements  to  roads  and  grounds  on  the  military 
reservation  at  West  Point,  and  otherwise  coming  Avithin  the  laws  and 
regulations  relative  to  extra  duty,  are  entitled"^  for  such  service,  to 
the  extra-duty  pay  provided  by  "law,  and  the  same  should  be  paid 
from  said  appropriations  for  niaintaining  the  children's  school  and 
for  the  improvements  to  roads  and  grounds. 

(Decision  of  Asst.  Comptroller  L.  P.  Mitchell,  June  5,  1912.) 


LAND-GRANT  RAILROADS:  Michigan  Central  Railroad;  computation  of 
earnings. 

The  ]\ricldgan  Central  Pvailroad  is  a  land-grant  railroad  between 
Lansing.  Mich.,  and  Mackinaw  Citv,  Mich.,  and  the  earnings  on  Gov- 
ernment business  over  said  distance  or  any  part  thereof  are  subject  to 
tlie  land-grant  deduction  recjuired  by  law. 


DIGEST   OF   OPIXIOXS   OF   THE    JUDGE   ADVOCATE   GENERAL.  19 

The  eai'iiings  of  the  land-gruiit  portion  of  a  lailroacl  used  for  Gov- 
ernment business  are  to  be  determined  on  the  basis  of  the  original 
hnid-grant  mileage  in  connection  with  the  nonaided  mik'age  used  for 
said  ser\ice. 

(IS  Conip.  Dec,  GTi,  Mar.  G,  191-2.) 


OrnCERS  OF  the  army  :  Selection  of  home  on  retirement. 

There  is  no  law  or  regulation  which  limits  the  selection  of  the  home 
by  any  Army  officer  on  retirement  from  active  service  to  a  place 
within  the  continental  limits  of  the  United  States,  and  where  an  offi- 
cer serving  in  the  Philippine  Islands  is  retired  and  selects  his  home  in 
Germany,  such  officer  is  entitled  to  the  mileage  and  actual  expenses 
which  the  law  gives  in  traveling  to  his  home  when  h^  makes  the  jour- 
ney under  proper  orders  within  a  reasonable  time  after  the  date  of 
retirement. 

(18  Comp.  Dec,  G34,  Feb.  SG,  1012.) 


PAY  AND  ALLOWANCES:  Fuel  allowances;  use  of  by  family  of  officer. 

During  the  entire  periotl  from  September  1,  1910,  to  April  oO,  1911, 
a  lieutenant  colonel  of  the  Army  was  on  duty  at  his  permanent  station 
in  Alaska  and  regularly  occupied  two  rooms  assigned  to  him  as  quar- 
ters, which  were  heated  by  fuel  issued  by  a  (juartermaster.  At  the 
officer's  request  and  upon  his  cei'tificate  that  he  would  use  2,000 
])ounds  of  bituminous  coal  and  not  use  10,870  pounds  of  bituminous 
coal  per  mcmth  during  said  period,  there  was  issued  to  his  family  at 
Shrewsbur3^  N.  J.,  G4,000  pounds  of  anthracite  coal,  for  which  the 
quarternuister  paid  the  sum  of  $187.20.  The  auditor  disallowed  this 
item  in  the  accounts  of  the  acting  quartermaster,  and  the  latter 
appealed  to  the  comptroller  from  the  auditor's  decision.  Held,  that 
when  the  quarters  actually  occupied  by  an  Army  officer  are  heated  at 
the  expense  of  the  United^States  he  is  not  entitled  to  have  an}^  addi- 
tional fuel  issued  to  hims'elf  or  to  his  family  at  the  expense  of  the 
United  States,  notwithstanding  the  fact  that  he  may  not  have  occu- 
pied the  full  number  of  rooms  to  which  his  rank  entitled  him,  or  that 
the  quantity  of  fuel  used  to  heat  the  rooms  which  he  occupied  as 
quarters  may  have  been  less  than  the  quantity  which  the  regulations 
prescribe  as  the  maximum  (puintit}^  for  the  number  of  rooms  which  he 
occupied.  And  held  further^  that  wdien  an  officer  on  duty  in  Alaska 
occupies  public  quarters  heated  at  his  own  expense,  the  quantity  of 
fuel  which,  under  the  regidations,  may  be  issued  at  the  expense  of  the 
United  States  to  his  family  can  not  exceed  the  quantity  prescribed  in 
the  regulations  for  the  number  of  rooms  actually  occupied  as  quarters 
bv  said  officer. 
■  (18  Comp.  Dec,  592,  Feb.  8,  lt)12.) 

A  rehearing  was  requested  upon  a  certificate  showing  that  the  offi- 
cer occupied  his  full  allowance  of  six  rooms,  but  the  rehearing  was 
denied  upon  the  ground  that  all  the  rooms  occupied  had  been  heated 
at  Government  expense. 


20  mOFSt   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

PAY  OF  ENLISTED  MEN:  Deductions  of  indebtedness  due  the  United 
States  from  travel  pay  on  discharge. 

An  enlisted  man  Avns  broneht  bnck  from  absence  without  leave  at 
CA\  expense  for  himself  and  his  guard  of  $30.15,  which,  with  other 
amounts,  made  his  indebtedness  to  the  United  States  exceed  the  bal- 
ance of  pay  due  on  his  final  discharge.  Held,  that  an  enlisted  man's 
indel)tedne.ss  to  the  United  States  on  account  of  transportation  fur- 
nished him  on  returning  him  to  his  station  from  absence  Avithout 
leave  is  not  a  proper  charge  against  the  soldier's  travel  pay  due  him 
on  final  discliai-ge  from  the  service. 

(18  Comp.  Dec,  G21,  Feb.  23,  1912.) 


REENLISTMENT'PAY:  Computation  of;  extra-duty  pay. 

A  soldier  enlisted  and  was  discharged  from  the  service  after  serv- 
ing the  full  term  of  his  enlistment.  For  some  time  prior  to  his  dis- 
charge he  was  employed  on  extra  duty  as  a  mechanic  at  the  rate  of  50 
cents  a  day  and  was  so  employed  until  the  day  before  his  discharge, 
on  which  day.  being  Sunday,  he  rendered  no  extra-duty  service  and 
received  no  extra  pay  therefor.  Held,  following  decision  in  17 
Comp.  Dec,  828,  that  said  extra-duty  pay  received  by  the  soldier 
should  not  be  included  in  computing  the  three  months'  pay  for  re- 
enlistment  within  that  period. 

(Asst.  Comptroller  L.  P.  Mitchell,  Jan.  2,  1912.) 


TRANSPORTATION   OF   BAGGAGE   ALLOWANCE:    Change    of   station; 
horses  not  regarded  as  baggage. 

Horses  are  not  regarded  as  baggage  or  ''  baggage  in  excess  of  regu- 
lation change-of-station  allowance ''  within  the  meaning  of  Army 
Kegulations  and  the  act  of  March  23,  1910  (30  Stat.,  255),  and  where 
an  officer  on  changing  station  has  had  transported  at  public  expense 
from  his  old  to  his  new  station  all  the  horses  for  Avhich  he  is  legally 
entitled  to  forage,  the  Government  has  discharged  its  legal  obliga- 
tions with  respect  to  the  transportation  of  his  horses. 

Where  an  officer  ships  horses  in  excess  of  the  number  he  is  legally 
entitled  to  forage  for.  such  horses  should  be  transported  at  his  own 
expense  and  on  a  commercial  bill  of  lading  and  not  on  a  Government 
bill  of  ladina". 

(18  Comp."  Dec,  404,  Jan.  2,  1912.)  ' 


OPIITIONS  OF  THE  ATTORNEY  GENERAL. 

CONTRACTS:  Modifications  of  and  payment  of  damages. 

The  Secretary  of  the  Navv  mav  insert  in  the  contracts  for  vessels 
constructed  under  authority  of  the  act  of  March  4,  1911  (36  Stat., 
1265),  a  provision  for  making  changes  in  said  contracts  and  for  deter- 
mining the  amount  of  increased  or  diminished  compensation  arising 
therefrom,  whether  such  compensation  be  of  the  nature  of  liquidated 
or  inili(iuidated  damages. 

(29  Op.  Atty.  Gen.,  285,  Dec  21,  1911.) 


DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL.  21 

CONTRACTS:  Return  of,  for  filing;  disclosure  of  confidential  plans. 

The  Revised  Statutes  of  the  United  States  provide : 

"  Sec.  3744.  It  shall  be  the  duty  of  the  Secretary  of  War,  of  the 
Secretary  of  the  Navy,  and  of  the  Secretar}^  of  the  Interior  to  cause 
and  require  every  contract  made  by  them  severally  on  behalf  of  the 
Government,  or  by  their  officers  under  them  appointed  to  make  such 
contracts,  to  be  reduced  to  writing,  and  signed  by  the  contracting 
parties  with  their  names  at  the  end  thereof,  a  copy  of  which  shall 
be  filed  by  the  officer  making  and  signing  tlie  contract  in  the  Returns 
Office  of  the  Department  of  the  Interior,  as  soon  after  the  contract 
is  made  as  possible,  and  within  30  days,  together  with  all  bids,  offers, 
and  proposals  to  him  made  by  persons  to  obtain  the  same,  and  with 
a  copy  of  any  advertisement  he  may  have  published  inviting  bids, 
offers,*^  or  proposals  for  the  same.  AH  the  copies  and  papers  in  rela- 
tion to  each  contract  shall  be  attached  together  by  a  ribbon  and  seal, 
and  marked  by  numbers  in  regular  order,  according  to  the  number  of 
papers  composing  the  whole  return. 

"  Sec.  3745.  It  shall  be  the  further  duty  of  the  officer  before  mak- 
ing his  return,  according  to  the  preceding  section,  to  affix  to  the  same 
his  affidavit  in  the  following  form,  sworn  to  before  some  magistrate 
having  authority  to  administer  oaths:  'I  do  solemnly  swear  (or 
affirm)  4hat  the  copy  of  contract  hereto  annexed  is  an  exact  copy  of 

a  contract  made  by  me  personally  with :  that  I  made  the  same 

fairly  without  any  benefit  or  advantage  to  myself,  or  allowing  any 
such  benefit  or  advantage  corruptly  to  the  said  — — ,  or  any  other 
person ;  and  that  the  papers  accompanying  include  all  those  relating 
to  the  said  contract,  as  required  by  the  statute  in  such  case  made  and 
provided.' " 

On  application  of  the  Secretar}'^  of  the  Interior  for  opinion  as  to 
whether  a  certain  affidavit  annexed  to  a  contract  sent  to  him  for 
filing,  and  containing  the  statement  that  the  accompanying  papers 
included  all  those  relating  to  said  contract  except  certain  plans  which 
were  confidential  and  could  not  be  divulged  without  detriment  to  the 
public  interests,  was  in  compliance  with  the  law. 

Held,  that  while  the  sufficiencv  of  the  return  of  a  contract  bv  tlie 
Secretary  of  the  Xavy  is  not  a  question  of  law  arising  in  the  admin- 
istration of  the  Department  of  tlie  Interior,  and  therefore  is  not  one 
upon  which  the  Attorney  General  is  required  to  render  an  opinion,  it 
is  proper  that  the  Secretary  of  the  Interior  should  be  advised  whether 
the  case  submitted  presents  a  violation  of  the  statute,  since  it  is  his 
duty  to  call  apparent  violations  of  the  statute  to  tlie  attention  of  the 
Department  of  Justice.  Held  further^  that  in  making  the  return  of 
a  contract  on  behalf  of  the  Government,  as  provided  for  in  sections 
3744  and  3745  of  the  Revised  Statutes,  it  is  not  required  to  accom- 
pany such  contract  with  copies  of  plans  that  are  confidential  and  can 
not  be  divulged  without  detriment  to  the  public  interests,  and  tlie 
affidavit  mav  except  such  plans  from  the  return. 

(29  Op.  Atty.  Gen.,  293,  Jan.  17,  1912.) 


EIGHT-HOUR  DAY:  Subcontractors. 

The  naval  appropriation  act  of  March  4,  1911  (30  Stat.,  1287-88), 
makes  appropriation  for  submarine  torpedo  boats  and  for  the  con- 
struction and  machinery  of  vessels,  and  provides  that  no  part  of  said 


22  DIGEST   OF    OPTXIONS   OF   THE   JUDGE   ADVOCATE   GENERAL. 

ai.propriations  shall  be  expended  for  the  construction  of  any  boat  or 
f..r  the  construction  of  anv  battleship  ''by  any  person,  firm,  or  cor- 
poration which  has  not,  at  the  time  of  the  c(mimencement  and  durmg 
the  construction  of  said  vessels,  established  an  eight-hour  working 
dav  for  all  employees,  laborers,  and  mechanics  engaged  or  to  be 
engaged  in  the  construction  of  the  vessels  named  herein." 

nehl  that—  .     .  ^  ,^      1     .    .^.. 

The  provisions  in  the  naval  appropriation  act  ot  March  4,  1911 
(:U;  Stat.,  1288),  relating  to  an  eight-hour  workday  for  employees 
engaged  in  the  construction  of  the  vessels  therein  authorized,  are  not 
linnted  to  the  employees  of  contractors,  but  apply  to  employees  of 
subcontractors  engaged  in  the  actual  construction  of  said  vessels. 

Under  the  eight-hour  restrictions  of  said  act,  the  person,  firm,  or 
corporation  actually  constructing  any  of  the  vessels  therein  specified 
must  established  an  eight-hour  workday  for  all  of  its  employees  en- 
gaged in  making  any  of  the  parts  of  the  vessel  ami  in  assembling 
those  parts  upon  their  ccmipletion. 

These  eight-hour  restrictions  prohibit  the  working  of  employees 
more  than  eight  hours  a  day  in  the  construction  of  said  vessels  and 
their  machinery,  and  they  can  not  be  nullified  by  permitting  the  em- 
ployees by  contract  with  their  employers  to  work  overtime  for  addi- 
tional compensation. 

(29  Op.  Atty.  Gen.,  279,  Dec.  21.  1911.) 


MILITIA:  Acceptance  of  office  in  National  Guard  of  a  State  by  an  officer 
on  the  active  list  of  the  Regular  Army. 

Section  1222,  Revised  Statutes,  provides: 

"  No  officer  of  the  Army  on  the  actiA'c  list  shall  hold  any  civil  office, 
Avhether  by  election  or  appointment,  and  every  such  officer  who 
accepts  or  exercises  the  functions  of  a  civil  office  shall  thereby  cease 
to  be  an  officer  of  the  Army,  and  his  commission  shall  be  thereby 
vacated." 

Upon  an  application  by  the  Secretary  of  War  for  an  opinion  upon 
the  question,  whether  an  officer  on  the  active  list  of  the  Regular 
Army  may  accept  the  office  of  colonel  in  the  National  Guard  of  the 
State  of  Massachusetts  without  violating  the  provisions  of  section 
1222  of  the  Revised  Statutes,  and  without  incurring  the  penalties 
named  therein — 

IlehL  that  an  officer  on  the  active  list  of  the  Regular  Armv  may 
accept  the  office  of  colonel  in  the  National  Guard  of  a  State  without 
A  iolating  the  provisions  of  section  1222  of  the  Revised  Statutes.  But 
added,  that  whether  the  acceptance  by  an  officer  of  the  Army  of  an 
office  in  the  National  Guard  of  a  State"  would  be  inconsistent  with  the 
policy  expressed  in  the  Constitution  and  laws  of  the  United  States 
with  respect  to  these  two  establishments,  and  whetlier  there  are  not 
reasons  other  than  those  contained  in  section  1222  of  the  Revised 
Statutes  which  would  make  it  illegal  or  improper  for  an  officer  of  the 
Army  to  subject  himself  to  conflicting  State  jurisdiction,  are  matters 
upon  which  he  ex]n-esses  no  o[)inion. 

(29  Op.  Atty.  Gen.,  298,  Jan.  31,  1912.) 


DIGEST   OF   OPTXIOXS    OF    THE    JUDGE   ADVOCATE    GBXEEAL.  23 

MILITIA:  Authority  of  the  President  to  send  outside  of  the  United  States. 

The  Constitution,  which  enumerates  the  exchisive  purposes  for 
which  the  militia  may  be  called  into  the  service  of  the  United  States, 
affords  no  Avarrant  for  the  use  of  the  militia  bv  the  (reneral  Govern- 
ment excei:)t  to  suppress  insurrection,  repel  in\asions,  or  to  execute 
the  laws  of  the  Union,  and  hence  the  President  has  no  authority  to 
call  forth  the  oro;anize(l  militia  of  the  States  and  send  it  into  a  for- 
eign country  with  the  llegular  Army  as  a  part  of  an  army  of  occu- 
pation. 

{'29  Op.  Atty.  Gen.,  M2,  Feb.  IT,  1912.) 


OFFICERS  OF  THE  ARMY:  Appointment;  commission  issued  in  the  name 
of  a  deceased  person. 

Capt.  John  T.  Haines  became  entitled  by  seniority  to  promotion  to 
the  grade  of  major  of  cavalry  March  -5,  1911,  was  nominated  to  the 
Senate  by  the  President  on  May  4,  1911,  for  promotion,  and  the 
nomination  was  confirmed  Maj*  15,  1911.  He  had  died  May  11.  1911, 
Held,  that  a  commission  as  major  of  cavalry  can  not  be  lawfully 
issued  in  the  name  of  an  officer  of  the  Army  whose  death  occurred 
after  he  was  nominated  to  that  grade  by  the  President  but  prior  to 
the  time  the  nomination  was  confirmed  by  the  Senate.  It  is  essential 
to  the  creation  of  sucli  office  that  there  should  be  an  appointment  by 
the  President,  in  addition  to  a  nomination  to,  and  consent  by,  the 
Senate. 

(29  Op.  Atty.  Gen.,  254,  Sept.  22,  1911.) 


TAXATION:  Philippine  customs  stamp  tax;  Government  property. 

Section  284  of  act  No.  855  of  the  Philippine  Commission,  as 
amended  (Sec.  1060  of  the  Compiled  Acts  of  the  Philippine  Commis- 
sion of  1907),  pr()\  ides  that  certain  shipping  documents  relating  to 
goods  imported  into  said  islands  shall  not  be  issued,  received, 
granted,  or  recognized  unless  there  shall  be  attached  thereto  certain 
customs  stamps,  as  specified  in  the  act,  of  denominations  of  from  40 
cents  to  $4.  Philippine  currency,  according  to  the  character  of  the 
instrument,  the  size  of  the  vessel,  or  the  value  of  the  goods  involved. 
This  stamp  was  demanded  for  the  entrj'  of  certain  goods  belonging  to 
the  United  States  imported  into  the  Philippine  Islands  for  the  use 
of  the  Army.  Held.,  that  the  stamp  is  a  tax  and  not  a  reimbursement 
for  services  performed,  and  that  so  far  as  the  act  in  question  covers 
goods  of  the  United  States  imported  into  the  islands,  it  is  illegal  and 
Aoid  as  being  bevond  the  competency  of  the  Philippine  Government. 

(Op.  Atty.  Gen.,  June  8,  1912.) 


WAR:    Neutrality;    importation    of    arms    and    ammunition;    words    and 
phrases. 

The  words  "  arms  or  munitions  of  war."  within  the  meanirig  of  the 
joint  resolution  of  March  14,  1912,  authorizing  the  President  by 
proclamation  to  prohibit  the  export  of  arms  or  munitions  of  war  to 


24  DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE    GENERAL. 

any  American  country  in  Avliicli  conditions  of  domestic  violence  are 
found  to  exist,  embrace  weapons  used  for  the  destruction  of  life, 
tdjrether  Avith  ammunition  and  equipment  useful  in  connection  with 
them,  and  explosives  and  other  equipment  of  a  military  character,  or 
articles  used  for  the  construction  of  such  equipment. 
(•29  Op.  Atty.  Gen.,  375,  Mar.  25,  1912.) 


DECISIONS  OF  THE  COURTS. 

CONTRACTS:  Acceptance  of  bids;  alternative  bids. 

The  Government  advertised  for  bids  to  be  submitted  upon  two  al- 
ternative plans  for  the  construction  of  certain  public  works  and 
notified  the  bidder  upon  both  plans  that  it  would  accept  its  bid,  with 
the  proviso  that  six  months  should  elapse  within  which  to  decide 
between  the  two  plans.  The  bidder  had  given  the  usual  bond  con- 
<litioned  for  entering  into  the  contract  within  60  days  after  the  open- 
ing of  the  bids.  xVfter  the  expiration  of  said  period  of  <)0  days  the 
(lovernment  notified  the  bidder  that  it  would  accept  the  bid  upon  one 
of  the  plans  specified,  but  the  bidder  refused  to  enter  into  a  contract. 
Jleld^  that  the  Government  having  accepted  a  bond  limiting  the 
jjeriod  of  acceptance  to  GO  days,  it  can  not  now  claim  that  it  had 
more  than  60  days  in  which  to  elect  to  accept  or  reject  the  bid,  and 
that  the  acceptance,  with  the  proviso  that  it  would  take  six  months 
Avithin  which  to  decide  which  of  the  two  plans  it  would  adopt,  was 
not  such  an  acceptance  of  the  bid  as  required. 

(Judge  Lacombe  on  motion  to  dismiss  com])laint  in  the  case  of 
United  States  v.  CarJin  Construction  Co.  and  the  Illinois  Surety 
Co..,  United  States  District  Court,  Southern  District  of  Xew  York, 
May,  1912.) 

CONTRACTS:  Cost  of  work;  extra  work. 

The  Secretary  of  tlie  Interior  entered  into  a  contract  for  the  con- 
struction of  a  dam  and  iri-igation  works  for  the  Huntley  reclamation 
I)roject  in  the  State  of  Wyoming,  said  contract  jiroviding  for  pay- 
ment for  certain  extra  work  at  the  necessary  cost  thereof  plus  15  per 
cent.  The  contractor,  in  the  performance  of  such  work,  incurred 
expenses  foi'  the  insurance  of  employees  against  liability  for  accidents 
and  claimed  this  as  a  part  of  the  necessary  cost  of  the  work,  together 
wnth  the  de])reciation  of  his  plant.  Held.,  that  while  ordinarily  ex- 
penses for  the  insurance  of  men  and  the  depreciation  of  a  plant  are 
included  in  a  contractors  bid,  and,  as  respects  the  work  covered  by 
the  specifications,  apply  in  this  contract,  the  cost  of  the  work  not  so 
included  should  include  such  expenses  as  a  part  of  the  ''  actual 
necessarv  cost  thereof." 

{Lovell  V.  United  States,  Court  of  Claims,  Apr.  8,  1912,  Xo.  30359. 
lieversing  14  Comp.  Dec,  297.) 


CONTRACTS:  Warranty  of  existing  conditions;  excuses  for  delay  in  com- 
pleting contract. 

A  contract  providing  for  the  repair  of  a  dam  required  the  excava- 
tion of  material  immediately  above  the  dam.     The  printed  specifica- 


DIGEST    OF   OPINIONS    OF    THE    JUDGE   ADVOCATE    GENERAL.  25 

lions  stated  that  the  dam  was  "backed  up  for  about  50  feet  Avith 
broken  stone,  sawdust,  and  sediment  to  a  heiglit  of  w'ithin  2  or  3  feet 
of  the  crest."  The  specifications  further  stated  that  each  bidder  was 
expected  to  visit  the  site  of  tlie  work  and  ascertain  tlie  nature  thereof 
and  obtain  information  necessary  to  enable  him  to  make  an  intelligent 
proposaL  After  work  was  begun  it  developed  that  the  space  above 
the  dam  was  occupied  by  the  cribAvork  of  an  old  dam,  instead  of 
by  the  material  stated  in  the  specifications.  Ileld^  that  the  cost  of 
additional  inspections  for  the  period  of  delay  occasioned  by  the 
extra  time  required  for  removing  the  cribwork  of  the  old  dam  should 
be  charged  against  the  contractor,  since  the  statement  in  the  speci- 
fications of  the  character  of  the  material  back  of  the  dam  ditl  not 
amount  to  a  warranty,  because  the  bidder  had  been  invited  to  inspect 
the  work  before  submitting  his  proposal. 

{UoUerhach  &  May  v.  United  ^States^  Court  of  Claims,  No.  29952, 
Feb.  12,  1912.) 


INDIANS:    Introducing   intoxicating'   liquors   into    the    country   formerly 
comprising  the  Indian  Territory. 

Before  the  admission  of  Oklahoma  as  a  State,  the  act  of  March  1, 
1895  (28  Stat.,  697),  forbade  the  manufacture  or  sale  in  or  the  intro- 
duction into  the  Indian  Territory  of  intoxicating  liquors.  (leneral 
statutes  foi-bade  the  introduction  of  any  such  liquors  into  the  Indian 
country  or  the  sale  thereof  to  the  Indians.  The  enabling  act  under 
Avhich  the  State  constitution  of  Oklahoma  was  formed  and  the  State 
admitted  into  the  Union  provided  also  against  the  introduction  of 
such  liquors  into  the  original  limits  of  the  Indian  Territory  from 
other  points  within  the  State,  and  preserved  the  jurisdiction  of  Con- 
gress over  the  Indians  and  their  lands.  IleUl.,  that  the  act  of  March 
1,  1895,  is  still  in  force  as  a  Federal  statute,  and  a  person  who  ships 
intoxicating  liquors  from  an  adjoining  State  into  the  limits  of  the 
Indian  Territory,  as  it  formerly  existed,  although  to  that  portion  of 
it  where  the  Indian  title  has  been  extinguished,  violates  the  provi- 
sions of  said  act,  and  the  district  court  of  the  United  States  has 
jurisdiction  to  punish  him  for  such  violation. 

{In  re  Weljh,  Decision  of  U.  S.  Supreme  Court,  June  10,  1912.) 


PATENTED  INVENTIONS:  Use  of  by  United  States. 

On  June  8,  1907,  the  Fried  Krupp  Co.,  a  corporation,  organized 
under  the  laws  of  the  German  Empire,  brought  suit  in  the  Supreme 
Court  of  the  District  of  Columbia  against  the  Chief  of  the  Ordnance 
Department  of  the  United  States  Army  to  enjoin  him  from  manufac- 
turing and  using  certain  improvements  in  guns  and  gun  carriages, 
which  the  complainant  claimed  Avere  coAered  by  United  States  pat- 
ents oAA'ned  by  it.  It  was  admitted  that  the  defendant  was  the  Chief 
of  Ordnance  of  the  United  States  Army ;  that  field  ginis  and  gun  car- 
riages embracing  the  improvements  in  question  were  being  manufac- 
tured and  AYould  continue  to  be  manufactured  for  the  use  of  the  Ord- 
nance Department  of  the  United  States;  and  that  the  defendant  de- 
rived no  profits  therefrom.    A  demurrer  to  the  bill  Avas  sustained  and 


2G  DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE    GENERAL. 

tho  same  (lismissed,  l)ul  the  Coiii't  of  Appeals  revei'sed  the  decision 
and  remanded  the  case  for  further  proceedings,  and  the  case  was  then 
removed  by  certiorari  to  the  Siqireme  Court  of  the  United  States. 
Ilchh  that  since  the  act  of  June  '25,  1910  (36  Stat.,  851),  providing 
that  when  an  invention  secured  by  letters  patent  is  used  by  the 
Tnited  States  without  the  license  of  the  owner  the  latter  may  recover 
reasonable  compensation  therefor  in  the  Court  of  Claims,  a  suit  for 
an  injunction  will  not  lie  against  an  officer  of  the  United  States  man- 
nfactuiing  or  using  such  patented  in\ention  for  the  (jovernment,  the 
law  having  thus  ])rovidecl  a  method  whereby  the  owner  may  obtain 
compensation. 

{Fried  h'rupp  Co.  v.  C rosier .,  U.  S.  Supreme  Court,  Apr.  8,  1912.) 


TRANSPORTATION:  Government  bill  of  lading;  loss  occasioned  by  un- 
precedented flood. 

A  (juantity  of  books  were  shipped  on  a  Government  bill  of  lading 
and  destroyed  by  the  unprecedented  floods  of  1903  in  Kansas  City, 
Mo.,  while  in  possession  of  the  transportation  company.  Their  value 
was  deducted,  in  making  settlement,  from  sums  admitted  to  be  due  to 
said  company.  The  bill  of  lading  contained  no  special  contract  of 
exemption  of  the  carrier  from  its  general  liability,  and  the  usual 
freight  I'ate  was  charged.  Held,,  that  the  loss  Avas  occasioned  by  one 
of  the  two  instrumentalities  excepting  common  carriers  from  their 
general  liability  as  insurers  of  goods  while  in  transit,  to  wit,  the  act  of 
Cod  and  the  public  enemy,  and  that  the  company  was  not  responsible 
for  the  loss  and  is  entitled  to  judgment  for  the  amount  retained. 

{Missouri  Pacific  naihvaij  Co.  v.  United  UStates,  Court  of  Claims, 
No.  30040,  Feb.  12,  1912.) 


BULLETIN  20. 

BuLLKTTxl  WAR  DEPARTMENT, 

No.  20.    J  Washington,  Octoher  19,  1912. 

The  followino-  dicrest  of  opinions  of  the  Judofe  Advocate  General 
for  the  period  from  July  1  to  September  80, 1012,  inclusive,  and  digest 
of  decisions  of  the  Comptroller  of  the  Treasury  and  opinions  of  the 
Attorney  General  are  publislied  for  the  information  of  the  service 
in  general. 

'  [193J37G  A— A.  G.  O.] 

By  order  of  the  Secretary  of  War  : 

W.  W.  WOTTIERSPOOX, 

Major  General^  Acting  Chief  of  Staff. 
Official  : 
GEO.  ANDREWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ABSENCE:  Leave  of;  employees  at  the  West  Point.  N.  Y.,  Military  Acad- 
emy; laws  relating  to  leaves  of  absence  for  employees  in  gun  factories 
and  arsenals. 

The  act  of  February  1.  1001  (81  Stat.,  746),  authorizes  fifteen  days 
of  annual  leave  with  pay,  under  the  conditions  specified  therein,  for 
"each  and  every  employee  of  the  navy  yards,  gun  factories,  naval 
stations,  and  arsenals  of  the  United  States,"  and  the  act  of  March  8, 
1000  (35  Stat.,  755),  provide  for  "leave  of  absence  not  to  exceed 
fifteen  days  in  any  one  year,  which  leave  may,  in  exceptional  and 
meritoi'ious  cases,  where  such  an  employee  is  ill,  be  extended,  in  the 
discretion  of  the  Secretary  of  the  Navy,  not  to  exceed  fifteen  days  ad- 
ditional in  any  one  year,"  for  per  diem  employees  forming  part  of 
the  "clerical,  drafting,  inspection,  and  messenger  force  at  the  navy 
yards,  naval  station^^.  and  other  stations  and  offices  under  the  Naval 
Department,"  Held,  that  while  the  statutes  are  very  comprehensive 
as  to  certain  employees  of  the  Navy  Department  in  respect  to  leave 
of  absence,  the  provision  for  such  leave  to  similar  employees  in  the 
AVar  Department  is  limited  to  those  engaged  in  "gun  factories"  and 
"  arsenals  "  mentioned  in  said  act  of  February  1,  1001,  and  that  per 
diem  employees  of  the  Military  Academy  do  not  come  within  the  act 
and  there  is  no  authority  for  the  allowance  to  them  of  leave  of  ab- 
sence with  pay.  They  can  only  be  paid  for  the  days  they  work  and 
can  not  l)e  allowed  leave  with  pay  for  Saturday  afternoons  for  the 
months  of  Jul  v.  August,  and  September. 

(2-153,  July  13,  1012.) 

2T 


28  DIGEST  OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

ABSENCE  WITHOUT  LEAVE:  Arrest  and  confinement  by  civil  authorities; 
condonation  of  offense  and  discharge. 

•V  "Soldier  was  arrested  by  the  civil  authorities,  charged  with  se- 
duction After  his  arrest  he  married  the  girl  ^vhom  he  was  charged 
with  sediiciiiir,  which  fact  under  tlie  law  of  the  State  could  be  pleaded 
in  bar  of  th't'  prosecution  for  seduction,  and  he  Vv^as  consequently 
discharged  without  trial.  . 

Paragraph  131)4,  Armv  Regulations,  1910,  provides  that— 

'•  Officers  and  enlisted  men  in  arrest  and  confinement  by  the  civil 
authorities  will  receive  no  pav  for  the  time  of  such  absence;  if  re- 
leased without  trial,  or  after  trial  and  acquittal,  tlieir  right  to  pay 
for  the  time  of  such  absence  is  restored."' 

IleU.  that  while  the  soldier  came  within  the  strict  language  of  the 
regulation  he  did  not  come  within  its  meaning.  Through  his  own 
fault  he  has  not  rendered  the  services  contemplated  by  his  contract 
of  enlistment  and  his  marriage  to  the  girl  after  his  arrest  is  not  evi- 
dence of  his  innocence,  but  rather  an  admission  of  his  guilt.  His 
absence  following  such  arrest  and  until  his  restoration  to  duty  should 
be  considered  as  absence  without  leave  for  which  he  is  not  entitled 
to  ]i;iV. 

(72-211,  Sept.  IG,  1912.) 


ABSENCE  WITHOUT  LEAVE:  Making  good  time  lost. 

(")n  consideration  of  the  question  of  making  good  time  lost  by 
absence  without  leave  and  consequent  confinement  therefor  awaiting 
trial  and  in  serving  sentences.  Held.,  that  time  spent  in  confinement 
awaiting  trial  and  serving  sentence  for  the  offense  of  absence  Avith- 
ont  leave  durinof  the  period  of  a  soldier's  enlistment  is  not  time  re- 
quired to  be  made  good  by  the  act  of  May  11.  1908  (35  Stat.,  109), 
or  by  paragraph  130,  Army  Eegulations,  1910,  interpreting  the  law. 
Held  further.,  that  if  the  end  of  a  man's  enlistment  finds  him 
with  time  to  be  made  good  by  reason  of  such  unauthorized  absence, 
and  he  is  then  in  confinement  awaiting  trial  or  serving  sentence  be- 
cause of  said  absence,  his  service  to  make  good  time  lost  does  not  be- 
gin to  run  until  he  is  released  from  confinement. 

(2-234,  Sept.  9  and  10,  1912.) 


APPEOPRIATIONS:   Lease  of  public  building  by  one  department  to  an- 
other; works  of  improvement  or  repair. 

A  building  belonging  to  the  Treasury  Department  is  leased  by  the 
War  Department,  and  it  is  desired  to  install  a  window  therein  for 
the  benefit  of  such  use  by  the  War  Department.  Held.,  that  this  is 
an  improvement  or  betterment  of  the  building  and  not  a  repair,  and 
that  there  is  no  appropriation  of  the  War  Department  that  can  be 
used  for  the  installation  of  said  w^indow :  but  ad  rued  that  the  same 
might  be  arranged  for  as  a  part  of  the  rental  and  the  installation 
made  at  the  expense  of  the  appropriation  from  which  the  rental  is 
paid. 

(5-111,  Aug.  19.  1912.) 


DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE   GENERAL.  29 

ABMY:    Organization  of;  detail  as  principal  assistant  to  Chief  of  Bureau 
of  Insular  Affairs. 

An  officer  was  detailed  as  assistant  to  the  Chief  of  the  Bureau  of 
Insular  Affairs,  Wai-  Department,  pursuant  to  the  provisions  of  the 
a<'t  of  March  L>,  1007  (34  Stat..  116-2),  which  act  provides  that  the 
provisions  of  section  27  of  the  act  of  February  2,  1901  (31  Stat., 
755),  with  reference  to  the  transfer  of  officers  of  the  line  to  the  de- 
partments of  the  staff  for  tours  of  service,  shall  apjdy  to  the  vacancy 
created  by  said  detail  and  the  return  of  said  officei-  to  the  line.  IleM, 
that  as  the  detail  was  made  pursuant  to  said  act  of  March  2.  1007, 
which  makes  no  mention  of  the  length  of  the  detail,  and  not  under 
section  2(5  of  said  act  of  February  2,  1901,  which  |)i()vides  for  details 
of  four  years'  duration,  the  term  of  the  detail  is  not  limited  to  four 
years,  and  that  the  officer  so  detailed  did  not  by  operation  of  law  be- 
come a  supernumerai'y  officer  of  the  line  at  the  expiration  of  four 
years  from  the  date  of  his  detail. 

(14-123.«,  Aug.  13,  1912.) 


ARMY:   Use  of  officers  of  in  the  reorganization  of  the  Panama  police  force. 

Upon  re(]uest  by  tlie  Secretary  of  War  for  an  opinion  as  to  the  ad- 
visability of  reorganizing  the  police  force  of  Panama  under  the 
supervision  of  officers  of  the  Army  of  the  United  States,  in  view  of 
the  reported  condition  of  police  affairs  in  the  cities  of  Uolon  and 
Panama.  Ileld^  that  the  President,  in  his  discretion  and  without  the 
c<msent  of  Congress,  and  acting  under  Article  VII  of  the  treaty  with 
Panama  of  Noveml)er  18.  1903  (33  Stat.,  2234),  may  order  such  of- 
ficers of  the  Army  as  he  deems  proper  to  the  cities  of  Colon  and 
Panama  and  to  points  within  the  territories  and  harbors  adjacent 
thereto,  to  maintain  order,  and  for  this  purpose  to  reorganize  the 
Panama  police  force  or  take  such  other  steps  as  may  be  necessary  to 
carry  out  the  purposes  of  the  President:  Provided^  however^  that 
such  officers  shall  be  and  remain  at  all  times  solely  under  the  au- 
thority of  the  United  States.  Held  further^  that  the  President  may 
not,  without  the  consent  of  Congress,  detail  officers  of  the  Army  to 
serve  under  the  Ke]')ublic  of  Panama  for  the  purpose  of  reorganiz- 
ino;  the  ]5()lice  force  or  for  any  other  purpose. 

(92-500,  Aug.  19.  1912.) 


ARMY  BANDS:   TTse  of  during'  sessions  of  the  International  Congress  of 
Hygiene  and  Demography. 

On  application  for  the  services  of  the  Engineer  Band  and  the  Fort 
Myer  Band  for  the  XVth  International  Congress  on  Hygiene  and 
Demography,  Held,  that  while  bands  of  the  Army  may  be  ordered 
to  furnish  music  as  a  duty  devolving  upon  them,  the  propriety  of 
their  use  under  any  given  conditions  is  to  be  determined  by  the  mili- 
tary authority  having  power  to  issue  the  necessary  orders.  Held 
further,  that 'under  the  act  of  May  11,  1908  (35  Stat.,  110).  Army 
bands  or  membei's  thereof  stationed  in  or  near  Washington  may  not 
supply  music  for  hire  within  the  District  of  Columbia  if  they  come 
into  competition  with  other  musicians. 

(8-400,  Sept.  4,  1912.) 


30  DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

ARMY    TRANSPORTATION:   Sleeping-car    accommodations    for    enlisted 


men. 


A  private  sf^klier  travelino-  under  orders  alone  was  furnished  by 
the  depot  quartermaster  with  tourist  sleeping-car  accommodations, 
but  with  first-class  ticket  transportation,  second-class  tickets  between 
the  points  of  travel  not  being  obtainable.  Paragraph  114:3,  Army 
Eeiiidations,  1910,  provides  that—  ,      ,      .       <. 

'•Tourist  sleeping  cars  will  be  provided  for  troops  on  the  basis  of 
three  men  to  a  section  \\hen  the  journey  involves  spending  a  night 
on  the  train:  but  when  the  number  of  troops  is  too  small  to  justify 
the  hiring  of  tourist  sleepers,  second-class  transportation  with  tourist 
sleejiina-car  accommodations  on  the  same  basis  may  be  furnished. 
AMien  the  number  is  less  than  three,  each  man  will  be  furnished  with 

a  berth." 

A  letter  of  the  Quartermaster  General  subsequent  to  the  furnishing 
f>f  the  transportaticn  interpreted  this  regulation  to  mean  that  no 
sleei)ing-car  acconnuodations  could  be  furnished  enlisted  men  except 
where  second-class  transportation  was  also  furnished.  Held^  that 
tourist  sleejung-car  accommodations  may  be  ol)tained  Avhere  avail- 
able, even  though  second-class  transportation  can  not  be  purchased 
for  the  same  journey,  and  also  that  if  sleeping-car  accommodations 
to  which  a  soldier  niay  not  be  entitled  are  actually  furnished  to  and 
Used  bv  him  the  cost  thereof  can  not  be  charged  against  the  soldier. 

(9J^240.  Sept.  9,  1912.) 

ASSOCIATIONS:  Expenses  of  an  officer  detailed  to  attend  the  meetings  of 
the  International  Eugenics  Congress.      Section   8   of   act   of  June   26, 
1912. 

Section  8  of  the  act  of  June  20.  1912  (Public  Xo.  201).  provides— 

"  Xo  money  appropriated  by  this  or  any  other  Act  shall  be  ex- 
pended for  membership  fees  or  dues  of  any  officer  or  employee  of  the 
United  States  or  of  the  District  of  Columbia  in  any  society  or  asso- 
ciation or  for  expenses  of  attendance  of  any  person  at  any  meeting 
or  convention  of  membere  of  any  society  or  association,  unless  such 
fees,  dues,  or  expenses  are  authorized  to  be  paid  by  specific  appro- 
priations iov  such  purposes  or  are  provided  for  in  express  terms  in 
some  general  appropriation." 

It  Avas  proposed  to  detail  an  officer  of  the  INIedical  Corps  of  the 
Army  to  attend  the  International  Congress  of  Eugenics  to  be  held  in 
London,  England,  during  the  month  of  July,  1912.  Tleld^  that  the 
International  Congress  of  Eugenics  is  a  societ.y  or  association  within 
the  meaning  of  the  law  and  that  the  expenditure  of  any  money  appro- 
priated for  public  purposes  for  the  expenses  of  an  officer  of  the  Army 
detailed  for  attendance  upon  such  Congress  is  forbidden. 

(94-210,  July  3,  1912.) 

XoTE. — Section  10  of  the  Sundry  Civil  Act  approved  August  24, 
1912  (Public  Xo.  302),  postpones  the  operation  of  section  8  of  the 
act  of  June  26,  1912.  supra,  during  the  fiscal  year  1913,  except  to  the 
extent  that  it  prohibits  the  payment  of  membership  fees  or  dues,  but 
requires  written  authorization  from  heads  of  departments  for  incur- 
ring exj^en^es  of  attendance  upon  meetings  of  members  of  any  society 
or  association. 


DIGEST   OF   OPIXIOXS   OF    THE    JUDGE    ADVOCATE   GENERAL.  31 

ASSOCIATIOlSrS:  Attending  meetings  of  business  associations;  payment  of 
membership  dues  in  the  International  Association  of  Chiefs  of  Police. 

Section  8  of  the  act  approved  June  26,  1912  (Pul)lic  Xo.  201),  ap- 
propriating for  the  expenses  of  the  District  of  Cohnahia  j)r()\ides: 

'"No  money  appropriated  b}^  tliis  or  anv  other  Act  sliall  be  ex- 
pended for  membership  fees  or  dues  of  any  officer  or  emphjyee  of  the 
United  States  or  of  the  District  of  Columbia  in  any  s(X'iety  or  asso- 
ciation or  for  expenses  of  attendance  of  any  person  at  any  meeting 
or  convention  of  members  of  any  society  or  association,  unh'ss  such 
fees,  dues,  or  expenses  are  authorized  to  be  paid  by  specific  appro- 
priations for  such  purposes  or  are  provided  for  in  express  terms  in 
some  general  appropriation." 

Upon  consideration  of  the  question  as  to  whether  or  not  said  law 
operates  to  prevent  the  payment  of  traveling  expenses  of  employees 
of  the  Quartermasters  Department  in  attending  meetings  of  trans- 
c(mtinental  passenger  associations,  tariff  classification  committees, 
associations  or  committees  having  to  do  with  marine  matters,  or  asso- 
ciations or  conmiittees  in  connection  with  heating,  lighting,  and 
sewerage  problems,  etc.  11  eld ^  that  the  law  was  not  intended  to  limit 
the  means  or  methods  employed  by  tlie  Government  in  the  exercise 
of  its  functions  (Dec.  Comp.  Treas.,  July  20,  1912),  and  that  asso- 
ciations of  the  character  named,  so  far  as  they  relate  to  the  business 
of  the  Government,  do  not  come  within  the  meaning  of  the  law,  and 
the  expenses  of  officers  or  employees  of  the  Government  in  attending 
upon  such  meetings  as  are  necessary  or  proper  in  connection  witli 
the  transaction  of  the  Government  business  may  be  paid.  Held 
further,  that  a  membership  fee  in  the  International  Association  of 
Chiefs  of  Police  for  The  Adjutant  General  may  be  paid  if  necessary 
or  proper  in  procuring  information  concerning  probable  deserters  or 
escaped  military  prisoners. 

(94-210.  July  25,  1912.) 

Noi'E. — The  operation  of  section  8  of  the  act  of  June  26,  1912, 
supiYi,  was  in  part  postponed  bv  section  10  of  the  Sundrv  Civil  Act 
of  August  24,  1912  (Public  No. "302).  during  the  fiscal  year  1913. 


AVIATION  CORPS:  Flight  on  Labor  Day  without  orders;  line  of  duty. 

On  consideration  of  the  question  as  to  whether  an  officer  detailed  to 
the  Aviation  Corps,  permitted  but  not  ordered  to  make  a  fight  on 
Labor  Day,  on  the  occasion  of  a  celebration  of  the  day  by  labor 
organizations,  if  sustaining  an  accident  during  such  flight,  the  acci- 
dent would  be  in  the  line  of  duty.  Held,  that  it  is  the  duty  of  the 
officer  under  his  detail  to  make  practice  flights  to  fit  himself  for  the 
service  and  to  advance  the  science  and  art  of  aviation  in  its  relation 
to  the  military  service,  and  that  the  fact  that  the  pailicular  flight  is 
not  ordered  but  only  permitted,  or  that  it  is  made  on  the  occasion  of 
the  labor  celebration,  should  not  be  regarded  as  taking  the  officer  out 
of  the  line  of  duty. 

(54-020.  July  24,  1912.) 

CERTIFICATE  OF  MERIT:  Time  of  making  recommendation  therefor;  pay 
under  subsequent  enlistment. 

A  soldier  performed  an  act  of  meritorious  service  for  which  the 
captain  of  his  compan}'  recommended  that  he  be  granted  a  certificate 


32  DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEEAL. 

of  niorit  m  piirsiiance  of  section  121G,  Revised  Statutes  The  recom- 
mendation ^vas  approved  by  the  officer  commanding  his  regiment 
wliUe  the  soldier  was  still  in  the  service,  but  said  officer  was  not  in 
actual  ccmimand  at  the  time  of  the  performance  of  the  meritorious 
vet  The  papers  were  forwarded  to  Washington  lor  official  action 
but  were  returned  for  the  approval  and  recommendation  of  the  officer 
commanding  the  reg-iment  at  the  time  the  meritorious  service  was 
performed. '^  This  oflicer  returned  the  papers  with  his  approval  and 
recommendation  that  a  certificate  of  merit  be  granted,  but  before 
final  action  could  be  taken  the  soldier  had  left  the  service  and  the 
certificate  was  not  granted.  The  soldier  reenlisted  after  more  than 
three  months  and  is  now  in  the  service.  Section  1216,  Revised  Stat- 
utes, as  amended  by  the  act  of  March  29,  1892   (27  Stat.,  12),  pro- 

vides — 

'^  When  any  enlisted  man  of  the  Army  shall  have  distinguished 
himself  in  the  service  the  President  may,  at  the  recommendation  of 
the  commanding  officer  of  the  regiment  or  the  chief  of  the  corps  to 
which  such  enlisted  man  belongs,  grant  him  a  certificate  of  merit."  _ 

Hehh  that  under  said  statut'e  the  commanding  officer  of  the  regi- 
ment or  the  chief  of  the  corps  to  which  the  enlisted  man  belongs  must 
make  such  recommendation  before  the  soldier  leaves  the  service,  but 
this  commander  need  not  be  the  one  in  actual  command  at  the  time 
the  meritorious  service  was  performed. 

llehl  further,  that  under  the  act  of  February  9,  1891  (26  Stat., 
737),  a  soldier  reenlisting  is  entitled  to  receive  the  additional  pay 
carried  by  the  certificate  of  merit  earned  in  a  former  enlistment,  not- 
withstanding that  such  service  mav  not  be  continuous. 

(46-200,  Aug.  20,  1912.) 

CLERKS  AND  EMPLOYEES:  Clerk  in  the  Subsistence  Department  at  large; 
admission  to  the  Government  Hospital  for  the  Insane  after  discharge. 

A  clerk  in  the  Subsistence  Department  of  the  x\rmy  at  large  was 
granted  a  30  days'  leave  of  absence  and  before  its  expiration  became 
insane  and  was  admitted  to  a  hospital  for  the  insane  for  treatment. 
Afterwards  he  was  granted  a  leave  of  absence  Avithout  pay  and  there- 
after discharged.  When  discharged  he  was  still  insane  and  under 
treatment  at  a  State  institution.  Held,  that  as  the  clerk  became  in- 
sane Avhile  in  the  Government  employ,  the  Secretary  of  War  might, 
in  his  discretion,  under  section  4843,  Revised  Statutes,  order  his 
admission  to  the  Government  Hospital  for  the  Insane,  the  fact  of  his 
having  been  discharged  not  being  a  bar  to  such  admission. 

(44-120,  Sept.  5,  1912.) 


CLERKS  AND  EMPLOYEES:   Member  of  the  Militia  of  the  District  of 
Columbia;  leave  of  absence. 

A  clerk  Avho  belonged  to  the  National  Guard  of  the  District  of 
Columbia  was  tempoi-arily  employed  to  fill  a  vacancy  in  the  office 
of  the  Ghief  of  Engineers  pending  action  on  the  legislative,  executive, 
and  judicial  appropriation  bill  for  the  fiscal  year  1913.  On  consid- 
eration of  the  question  of  his  right  to  leave  of  absence  to  attend  an 
encampment  of  said  National  Guard  under  section  49  of  the  act  of 
March  1,  1889  (2.5  Stat.,  779),  which  provides  that 


DIGEST    OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.  33 

'"All  officers  and  employees  of  the  United  States  and  of  the  District 
of  Cohunbia  who  are  members  of  the  National  Guard  shall  be  entitled 
to  leave  of  absence  from  their  respective  duties,  without  loss  of  pay 
or  time,  on  all  days  of  any  parade  or  encampment  ordered  or  author- 
ized under  the  provisions  of  this  act." 

Ileld^  that  said  employee  was  entitled  to  such  leave  of  absence. 

(58-811,  Aug.  14,  1912.) 

CIiEE.KS  AND  EMPLOYEES:  Pay  of  during  suspension  for  insubordination. 

A  clerk  of  Class  I,  in  the  Adjutant  General's  Office,  was  orally  sus- 
pended from  duty  for  insubordination,  and  afterwards  his  resigna- 
tion was  accepted.  He  performed  no  duty  after  the  date  of  his  sus- 
pension. Ilcld^  that  a  clerk  in  an  executive  department,  although 
held  to  be  an  officer  of  the  United  States  for  certain  purposes,  may 
be  suspended  for  cause  by  the  authority  appointing  him  and  is  not 
entitled  to  pay  during  the  period  of  such  susj:>ension.     . 

It  appearing  that  the  Secretary  of  War  had  not  officially  acted 
upon  the  matter  of  suspension.  Ileld  furtheT,  that  he  may  now  do 
so,  and  if  he  approves  the  suspension,  the  clerk  is  not  entitled  to 
pay  subsequently  to  his  suspension;  otherwise,  if  he  disapproves  the 
same. 

(16-200,  Sept.  9  and  13.  1912.) 


CONTRACTS :    Competition   useless;    supplemental   contract   with   original 
contractor. 

Congress  authorized  the  modification  of  a  project  for  an  improve- 
ment of  a  navigable  water  under  contract,  the  modification  consist- 
ing in  the  cutting  off  of  bends  and  the  widening  of  the  channel,  all 
Avithin  the  expenditure  originally  authorized.  The  facts  indicated 
that  the  price  at  which  the  work  is  done  under  the  existing  contract 
is  less  than  what  could  be  obtained  if  bids  were  invited  for  the  addi- 
tional work  separately,  and  that  the  introduction  of  a  new  contractor 
would  create  complications  which  it  would  be  very  desirable  to  avoid. 
Held,  that  the  case  should  be  legarded  as  one  where  competition 
would  be  useless  and  the  w^ork  as  a  proper  one  for  a  supplemental 
contract  with  the  existing  contractor. 

(76-124,  Aug.  19,  19120 

CONTRACTS:  Penalty  for  delay  in  performance;  actual  damages. 

A  contract  was  made  for  the  repair  of  a  Government  steamer,  pro- 
viding that  the  work  should  be  completed  within  six  working  days 
and  that  the  United  States  might,  "  in  the  discretion  of  the  Quarter- 
master General,  exact  a  penalty  of  $25  per  day  for  each  and  every 
calendar  day  the  work  is  delayed  beyond  the  date  fixed  by  the  con- 
tract for  completion."  The  contractor  failed  to  complete  the  repairs 
within  the  time  limit.  Held,  that  the  contract  provided  for  a  penalty 
and  not  for  liquidated  damages,  and  that  the  Quartermaster  General 
might  exact  such  less  sum  per  day  as  he  should  find  sufficient  to  cover 
the  actual  damages  to  the  IJnited  States  by  reason  of  the  contractor's 
default  in  not  completing  the  work  within  the  stipulated  time. 

(76-410,  July  26,  1912.) 
93668°— 17 3 


34  DIGEST  OF    OPIXIONS   OF   THE   JUDGE   ADVOCATE   GENERAL. 

CONTKACTS:  Public  building's;  architects  employed  under  the  authority  of 
appropriations. 

Appropiiations  were  made  under  the  act  of  June  30,  190-2  (32 
Stat.,  512.  519).  for  the  construction  of  buihlings  for  the  Engineer 
vSchool  and  the  Army  War  College  at  Washington  Barracks,  D.  C, 
and  subsequent  appropriations  were  made  for  their  completion,  in- 
creasing the  cost.  The  only  authority  to  make  contracts  with  the 
airhitects  was  contained  in  the  said  act  of  June  30,  1902.  Under  a 
contract  made  in  pursuance  of  said  act  for  architectural  service. 
11  eld ^  that  where  the  only  power  to  enter  into  a  contract  arises  from 
the  existence  of  an  appropriation  sufficient  to  cover  the  amount  con- 
tracted for,  the  power  to  contract  is  limited  by  the  appropriation, 
and  that  a  contract  for  a  larger  amount  than  that  appropriated  for  is 
void,  even  though  the  contract  expressly  provided  that  it  should  be 
contingent  upon  future  appropriations. 

The  contracting  architects  in  this  case  were  allowed  to  continue 
their  work  under  subsequent  appropriations.  Held,  that  such  em- 
])loyment  Avas  on  a  qiun^tum  meruit  basis  and  not  under  their  con- 
tract, and  that  the  architects  have  no  rights  under  their  contract  to 
be  employed  as  such  in  the  erection  of  buildings  authorized  by  the 
subsequent  act  of  July  25,  1912  (Public  No.  2-H),  providing  for  the 
construction  at  the  Engineer  School  of  a  building  with  library  ac- 
commodations and  other  facilities  for  the  instruction  of  officers  of  the 
Engineer  Corps  in  duties  pertaining  to  the  improvements  of  rivers 
and  harbors,  or  any  future  buildings  constructed  at  the  Washington 
Barracks. 

(76-012,  Aug.  12,  1912.) 


CONTRACTS:  Public  works;  section  3717.  Revised  Statutes;  separate  agree- 
ments. 

Bids  were  invited  and  received  for  the  repair  of  five  harbor  boats 
stationed  at  a  fort,  and  two  bids  were  low  for  certain  portions  of  the 
work.     Section  3717,  Revised  Statutes,  provides: 

''  Whenever  the  Secretary  of  War  invites  proposals  for  any  works, 
or  for  any  material  or  labor  for  any  wf)rks,  there  shall  be  separate 
proposals  and  separate  contracts  for  each  work,  and  also  for  each 
class  or  material  or  labor  for  each  work." 

On  consideration  of  the  question  of  whether  it  would  be  a  violation 
of  this  section  to  execute  only  two  contracts  for  the  whole  work,  in- 
cluding in  each  contract  repairs  on  two  or  three  boats,  or  whether  it 
would  be  necessary  to  make  separate  contracts  for  the  repair  of  each 
boat.  Held.,  that  there  is  no  reason  why  more  than  one  boat  might 
not  be  included  in  a  single  contract  provided  the  boats  are  all  at  the 
same  place  and  the  repairs  fall  within  the  same  class  of  material 
or  labor. 

(7fi-350,  July  29,  1912.) 

Similarly  /^('/rt''  that  separate  agreements  were  not  necessary  for  the 
woi-k  of  painting  hospital  buildings  at  different  posts,  as  this  is  a 
Avork  of  repair  and  not  one  of  construction  of  a  public  work. 

(76-350,  Aug.  27,  1912.) 


I 


r 


DIGEST   OF   OPIXIOXS   OF    THE    JUDGE   ADVOCATE   GEXERAL.  35 

COUIITS-MAIITIAL :  Theft  cf  a  blanket  by  one  soldier  from  another;  Arti- 
cles of  War, 

The  60th  Article  of  War  provides  for  the  punishment  of  any  person 
in  the  military  service  of  the  United  States — 

''Who  steals,  embezzles,  knowingly  an.d  wilfully  misappropriates, 
applies  to  his  own  use  or  benefit,  or  wrongfully  or  knowingly  sells 
or  disposes  of  any  ordnance,  arms,  equipments,  ammunition,  clothing, 
subsistence  stores,  money,  or  other  property  of  the  Ignited  States,  fur- 
nished or  intended  for  the  military  service  thereof;'' 

The  6-2d  Article  of  War  provides  for  the  punishment  of  all  crimes, 
not  capital,  Avhich  officers  and  soldiers  may  be  guilty  of  to  the  preju- 
dice of  good  order  and  military  discipline,  though  not  mentioned  in 
the  foregoing  articles  of  war.  Ileld^  that  as  blankets  are  now  issued, 
not  as  a  part  of  the  soldier's  clothing  allowance,  but  as  equipage, 
which  is  placed  in  the  soldier's  possession  for  use  while  in  the  service, 
and  is  retained  by  the  Government  when  he  is  discharged,  prosecu- 
tions foi-  the  theft  of  such  articles  by  one  soldier  from  another 
should  be  brought  under  the  60th  Article  of  War,  except  in  cases 
where  the  blankets  were  issued  under  the  old  system  as  part  of  the 
soldier's  clothing  allowance,  when  the  charge  should  be  laid  under 
the  6-2d  xVrticle  of  War;  but  if  the  charge  is  laid  under  either  article 
it  would  be  lawful. 

(10-186.5.  Aug.  6.  1912.) 


DAMAGES:  Torts  of  Government  agents;  failure  to  keep  walk  in  repair. 

A  party  injured  by  being  tripped  on  a  loose  plank,  alleged  to  have 
been  negligently  allowed  to  get  loose  in  the  sidewalk  on  the  (rovern- 
ment  Military  Reservation  at  Fort  Niagara,  N.  Y.,  is  not  entitled  to 
damages  on  account  thereof  from  the  United  States.  The  (xovern- 
ment  is  not  liable  for  any  damages  arising  from  toils  or  neglects  of 
its  officers  unless  it  specificallv  assumes  such  liabilities. 

(18-320,  Aug.  3,  1912.) 


DESERTERS:   Revrard   for   apprehension   and   delivery   of;   serving   in   the 
Navy  or  Marine  Corps, 

Rewards  for  the  apprehension,  securing,  and  delivery  of  deserters 
from  the  Army,  not  to  exceed  $50  for  each  one,  are  provided  for  by 
annual  appropriation  acts.  Paragraph  121,  Army  Regulations,  1010, 
provides  among  other  things  that — 

"  No  reward  will  be  paid  in  the  case  of  a  deserter  or  of  an  escaped 
military  prisoner  who  is  serving  in  the  Army,  Navy,  or  Marine 
Corps." 

Uel(K  that  the  discretion  of  the  Secretary  of  War  in  offering  re- 
wards for  the  apprehension,  securing,  and  delivery  of  deserters  from 
the  Army  is  exercised  by  said  paragraph  of  the  Army  Regulations, 
and  a  soldier  deserting  from  the  Army  and  enlisting  in  the  Navy, 
comes  clearly  within  the  provisions  of  said  regulation  and  no  reward 
can  be  paid  for  his  apprehension  and  return  to  the  Army  as  a  deserter. 

(26-312.2.  Sept.  12,  1912;  26-312.3,  Aug.  8,  1912.) 


36  DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

DISCHARGE:  Enlisted  man  discharged  because  of  dependent  foster  parent. 

Section  30  of  the  act  of  February  2,  1901  (31  Stat.,  756),  provides 
for  the  honorable  discharge  of  a  soldier  upon  his  own  application, 
after  one  year's  service^  "  should  either  of  his  parents  die  leaving  the 
other  solely  dependent  upon  the  soldier  for  support."  A  soldier, 
vxith  the  consent  of  his  natural  parents,  had  actually  been  adopted  by 
a  man  and  wife  when  sixteen  months  of  age,  and  remained  with  them 
until  he  was  twenty-five  years  of  age,  although  no  decree  of  adoption 
had  been  issued  by  a  court.  Iletd^  that  he  was  entitled  to  his  dis- 
charge, upon  his  own  application,  after  one  year's  service,  upon  the 
death  of  one  of  such  foster  parents  leaving  the  other  in  destitute  cir- 
cumstances and  dependent  upon  him  for  support. 

(28-221.  Sept.  27,  1912.) 


DISCIPLINE:  Articles  of  War;  char.arine-  a  soldier  with  failure  to  produce 
at  inspection  clothing  previously  issued. 

A  soldier  was  charged  with  the  failure  to  account  at  inspection  for 
sundry  articles  of  clothing  issued  to  him  by  the  United  States.  Helcl^ 
that  if  the  soldier  was  merely  unable  to  produce  the  articles  of  cloth- 
ing, and  if  no  evidence  is  available  of  his  having  sold  the  same  or  lost 
them  through  neglect,  the  only  offenses  made  punishable  under  the 
17th  Article  of  War,  it  Avould  be  lawful  to  charge  the  soldier  either 
under  the  COth  or  G2d  Article  of  War,  according  to  the  nature  of  the 
case. 

(30-211,  Aug.  26,  1912.) 

DISCIPLIlsrE:  Confinement  of  military  prisoners  in  the  Canal  Zone  Peniten- 
tiary; appropriation  chargeable  with  the  expense. 

TTpon  request  that  arrangements  be  made  Avith  the  Isthmian  Canal 
Commission  whereby  military  prisoners  sentenced  to  confinement  in 
the  penitentiary  may  be  confined  in  the  penitentiary  of  the  Canal 
Zone.  Ilelih  that  the  act  of  the  Isthmian  Canal  Commission  of  Sep- 
tember 2,  1904.  is  broad  enough  to  authorize  the  receipt  and  detention 
of  military  prisoners  at  the  Canal  Zpne  penitentiary,  if  the  peniten- 
tiary is  properly  designated,  and  that  there  is  no  legal  objection  to 
making  the  arrangements  as  requested.  The  expense  of  maintenance 
of  said  prisoners  would  be  a  proper  charge  against  the  appropriation 
for  "  contingencies  of  the  army." 

(92-500,  Sept.   IG,  1912.) 


EMPLOYEES:   Compensation  for  injury   of,   while  in  the  service   of  the 
United  States. 

A  qua rryman  employed  by  the  quartermaster  at  West  Point,  X.  Y., 
was  injured  while  so  employed  by  a  large  block  of  stone  falling  upon 
him,  by  reason  of  which  he  "was  confined  to  the  hospital  for  about  two 
weeks.  The  act  of  May  30,  1908  (35  Stat.,  556).  provides  for  compen- 
sation to  artisans  or  laborers  in  the  United  States'  employ  for  injuries 
sustained  by  them  in  the  course  of  their  employment  "  in  any  of  its 
manufacturing  establishments,  arsenals,  or  navy  yards,  or  in  the  con- 
struction of  river  and  harbor  or  fortification  work  or  in  the  hazardous 


DIGEST   OF   OPINIONS  OF   THE    JUDGE   ADVOCATE   GENERAL.  37 

emploj'ment  on  construction  work  in  the  reclamation  of  arid  lands 
or  the  management  or  ccmtrol  of  the  same,  or  in  hazardous  employ- 
ment under  the  Isthmian  Canal  Commission," 

Ueld^  that  the  law  does  not  include  employment  by  the  Quarter- 
master's Department  at  a  military  post,  and  that  the  person  injured 
in  this  case  is  not  entitled  to  compensation  under  the  provisions  of 
said  act. 

(18-330,  Sept.  5,  1912.) 

EMPLOYEES:  Payment  of,  from  lump-sum  appropriations;  Acts  of  August 
26,  1912,  and  August  23,  1912. 

Section  7  of  the  Deficiency  Appropriation  Act  of  August  26,  1912 
(Public  No.   340),  provides  that 

''  No  part  of  any  money  contained  herein  or  hereafter  appropriated 
in  lump  sum  shall  be  available  for  the  payment  of  personal  services 
at  a  rate  of  compensation  in  excess  of  that  paid  for  the  same  or  simi- 
lar services  during  the  fiscal  year  nineteen  hundred  and  twelve ;  nor 
shall  any  person  employed  at  a  specific  salary  be  hereafter  transferred 
and  hereafter  paid  from  a  lump-sum  appropriation  a  rate  of  compen- 
sation greater  than  such  specific  salary,  and  the  heads  of  departments 
shall  cause  this  provision  to  be  enforced." 

A  similar  provision  is  found  in  section  3  of  the  Legislative.  Execu- 
tive, and  Judicial  Appropriation  Act  of  August  23,  1012  (Public  No. 
299),  except  that  said  act  refers  only  to  lump-sum  appropriations 
contained  therein. 

Held,  that  while  said  legislation  prevents  an  increase  of  the  com- 
pensation of  employees  paid  from  such  lump-sum  appropriations 
above  the  amounts  paid  for  the  same  or  similar  services  during  the 
fiscal  year  1912,  it  does  not  prevent  the  promotion  of  such  employees 
from  one  class  or  position  to  another  in  a  classification  designed  to 
indicate  the  different  degrees  of  experience  or  efficiency.  Held  fur- 
ther^ that  while  the  first  part  of  the  law  of  August  26,  1912,  relating 
to  increase  in  compensation  applies  only  to  the  appropriations  con- 
tained in  the  act  and  to  similar  appropriations  thereafter  made,  the 
second  portion  applies  to  all  such  appropriations  whenever  made. 
(Decs.  Comp.  of  Treas.,  Sept.  5  and  9,  1912.) 

(5-075,  Sept.  19,  1912.) 

ENLISTED  MEN:   Absence  without  leave;  detained  by  civil  authorities. 

A  soldier  while  absent  without  leave  was  detained  for  about  ten 
days  serving  sentence  imposed  by  civil  authorities.  Upon  release  and 
before  he  had  had  an  opportunity  to  return  to  his  station  he  was  re- 
arrested, and  upon  trial  one  week  later  w^as  acquitted.  Held,  that 
having  incurred  the  status  of  absence  without  leave  through  his  own 
fault,  such  status  continued  during  the  period  of  his  second  confine- 
ment although  he  was  subsequently  acquitted  of  the  cause  which  led 
to  such  confinement. 

(2-230,  July  30,  1912.) 

ENLISTED  MEN:  Disposition  of  the  effects  of  deceased  soldier;  jurisdiction. 

A  retired  enlisted  man  died  at  a  post  hospital  on  a  military  reser- 
vation over  which  exclusive  jurisdiction  has  been  ceded  to  the  United 

20686^^ 


38  DIGEST    OF    OPIXIOXS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

States,  leaving  money  and  other  personal  property  in  the  possession 
of  the  hospital  authorities  and  also  a  will  disposing  of  the  same. 
HehL  that  in  carrying  out  the  provisions  of  paragraph  162,  Army 
IJegulations,  1910,  the  proper  procedure  would  be  to  notify  the 
legatees  under  the  will  that  the  effects  of  the  deceased  soldier  will  be 
turned  over  to  the  legal  representative  appointed  by  the  court  of  the 
domicile  of  the  deceased,  and  that  if  no  application  be  made  therefor 
within  a  reasonable  time  the  same  will  be  disposed  of  as  provided  in 
the  Armv  regulations. 
(10-210.  Aug.  0,  1912.) 


ENLISTMENT:  Second  enlistment  of  deserter;  discharge  from  first  enlist- 
ment and  holding  him  to  the  second. 

Where  a  deserter  serving  in  a  fraudulent  enlistment  is  placed  in 
confinement  by  the  military  authorities  charged  with  desertion  from 
a  prior  enlistment  and  fraudulent  enlistment  while  in  desertion. 
Held,  that  such  confinement  constitutes  a  decision  on  the  part  of  the 
military  authorities  to  consider  the  soldier  as  in  his  first  enlistment 
and  amounts  to  a  suspension  of  service  under  his  second  enlistment. 

The  soldier,  while  undergoing  confinement,  under  sentence  for  the 
desertion  and  fraudulent  enlistment,  was  discharged  without  honor 
from  his  first  enlistment  and  held  to  his  second.  Held^  that  time 
thereafter  ??}3ent  in  confinement  for  the  desertion  and  fraudident 
enlistment  counted  on  his  second  enlistment. 

(3^310,  Aug.  5,  1912.) 


GOVERNMENT  AGENCIES:   Barber  shops,   billiard  and  pool  tables;  Dig. 
Op.  J.  A.  G.,  1912,  Government  Agencies,  VII,  corrected. 

General  Orders,  Xo.  28,  W.  D.,  February  28,  1911,  provides  that 

'■  The  establishment  of  company  barber  shops  and  of  company  bil- 
liard and  pool  tables  from  which  revenues  may  be  derived,  is  au- 
thorized. All  funds  accruing  therefrom  will  be  accounted  for  as  part 
of  the  company  fund." 

Held,  that  the  etfect  of  the  above  order  was  not  to  make  the  barber 
shop  and  billiard  and  pool  tables  governmental  agencies  to  the  ex- 
tent that  would  permit  the  stoppage  of  a  soldier's  pay  to  meet  his 
obligations  thereto. 

(C.  23691,  June  27,  1911.) 


GOVERNMENT  HOSPITAL  EOR  THE  INSANE:  Admission  of  an  enlisted 
man  to;  legal  residence. 

A  man  enlisted  in  the  coast  artillery  corps  at  Baltimore,  IMd..  giv- 
ing that  State  as  his  legal  residence,  and  later  was  admitted  to  a 
post  hospital  and  his  case  diagnosed  as  melancholia.  Later  he  was 
discliarged  on  surgeon's  certificate  of  disability,  "not  incurred  in  line 
of  duty,"  and  turned  over  to  the  officer  on  duty  at  the  central  police 
station  at  Baltimore.  He  had  previously  served  an  enlistment  in  the 
navy  when  he  gave  his  residence  as  Baltimore  County.  Maryland. 
Upon  application  by  his  mother  to  have  him  admitted  to  tlie  (ioA- 


DIGEST    OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.  30 

eminent  Hospital  for  the  Insane.  Ileld^  that  a  sohlier  does  not  lose 
his  le<?al  residence  by  absence  in  the  service  of  the  United  8tates 
and  that  the  man  should  still  be  considered  as  a  resident  of  the  State 
of  Maryland.  Being  such  resident  the  obligation  to  support  him 
rests  with  tlie  authorities  of  that  KState  and  no  further  action  should 
be  taken  by  the  War  Department.  C.  19208,  July  25,  1910. 
(44-100,' Aug.  9,  1912.) 


GOVEBNMElvTT  HOSPITAL  FOa  THE  INSANE:    Admission  of  a  member 
of  the  family  of  an  of&cer  to. 

Where  inquiry  was  made  as  to  whether  the  widow  of  an  officer  of 
the  Army  might  be  admitted  to  the  Government  Hosi)ital  for  the 
Insane.  'Held,  that  the  hospital  exists  as  set  forth  in  section  4S3S, 
Revised  Statutes,  for  the  care  and  treatment  of  the  insane  of  the 
Army  and  Navy  and  of  the  District  of  Coliiml)ia :  that  section  484;'*, 
Revised  Statutes,  as  amended,  restricts  patients  from  the  Army  to 
certain  distinct  classes  of  persons,  which  do  not  include  the  family  of 
an  officer;  and  that,  therefore,  the  widov/  of  an  officer,  as  such,  is 
not  entitled  to  enter  as  a  patient  the  ho^^pital  in  question. 

(44-134.  July  24.  1012.) 


INTOXICATING-  LIQUORS:  Introduced  into  the  old  Indian  Territory, 

The  modified  authority  granted  to  the  War  Dei>artment  under 
section  2139,  Revised  Statutes,  as  amended,  to  grant  permits  for  the 
introduction  of  intoxicants  into  the  Indian  country  in  certain  cases, 
has  been  nullified  by  section  3  of  the  enabling  act  of  the  State  of 
Oklahoma  approved  June  16,  190H  (34  Stat..  269),  in  so  far  as  it 
regards  the  old  Indian  Territory,  the  Osage  nation,  and  any  other 
parts  of  the  State  which  existed  as  Indian  reservations  on  January 
1,  1906.  While  under  the  above  section  of  the  Revised  Statutes  the 
War  Dejiartment  granted  at  times  permits  for  the  introduction  of 
intoxi<'ants  into  the  Indian  country,  it  was  only  where  cases  were 
presented  requiring  wine  or  alcohol  for  the  use  of  hospitals,  in  rare 
cases  for  individual  patients,  and  where  wine  was  needed  for  sacra- 
mental purposes.  The  AVar  Department  has  never  granted  ]:)ermits 
for  the  introdiiction  of  intoxicants  for  the  purpose  of  sale.  The 
Oklahoma  Enabling  Act  forbids  the  introduction  of  intoxicants  into 
the  territory  above  mentioned,  except  through  State  agencies  estab- 
lislied  under  the  laws  of  the  State  of  Oklahoma. 
(48-221,  Jidy  13,  1912.) 

JUDGE  ADVOCATES  GENERAL:  Digest  of  opinions  of;  manner  of  citing. 

In  the  matter  of  the  manner  in  which  the  Digest  of  Opinions  of  the 
Judge  Advocates  General,  edition  of  1912,  should  be  cited,  advised 
that  the  same  be  cited  by  page,  adding  the  last  letter  or  figure  char- 
acterizing the  particular  paragraph  on  the  page  to  which  reference 
is  made.  For  example,  under  the  head  of  Discipline  on  page  535 
will  be  found  a  paragraph  designated  as  follows:  XI  A  17  a  (2) 
(a)  [1]  [e]  [A].  This  should  be  cited  as  ''Dig.  Op.  J.  A.  G.,  1912, 
p.  .535  [A]. ^' 

(50-030,  Sept.  20,  1912.) 


40  DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL. 

MILITARY  ACADEMY:  Engineer  detachment;  status  of;  act  of  August  9, 
1912. 

In  construing  the  provision  Avith  reference  to  the  engineer  detach- 
ment at  the  United  States  Military  Academy  authorized  by  act  of 
August  9,  1912  (Public  No.  253),  making  appropriation  for  said 
institution.  Hdd.,  that  said  detachment  is  in  excess  of  the  enlisted 
strength  of  the  engineer  corps,  and  the  men  composing  it  make  up  an 
oriranization  of  their  own  attached  to  the  Military  Academy. 

Held  furtlier^  that  the  vacancies  heretofore  kept  open  in  the  vari- 
ous en.gineer  companies  for  the  purpose  of  maintaining  the  said  en- 
gineer detachment  stand  released  and  may  be  filled  by  enlistment, 

(^140.  Sept.  4,  1912.) 

MILITARY  ACADEMY:  Engineer  detachment;  distribution  of  the  profits 
of  the  post  exchange  after  the  act  of  August  9,  1912. 

General  Orders  provide  that  a  certain  amount  of  the  profits  of  a 
pest  exchange  shall  be  distributed — 

"  2.  "Where  tlie  members  belong  to  the  Corps  of  Engineers  it  will 
be  paid  to  the  Engineer  Band. 

*  :;:  ::<  si:  *  *  * 

''  4.  Where  the  members  belong  to  organizations  having  no  band, 
it  will  be  paid  to  the  band  serving  at  the  post  if  there  be  one.  other- 
wise to  such  members." 

The  act  of  August  9, 1912  (Public  No.  253.  p.  3),  appropriating  for 
the  Military  Academy  for  the  fiscal  year  1913,  provides  that — 
''  Hereafter  there  shall  be  maintained  at  the  United  States  Military 
Academy  an  engineer  detachment  which  shall  consist  of  " — a  certain 
number  of  noncommissioned  officers  and  privates. 

Held^  that  such  detachment,  although  retaining  its  character  of 
engineer  troops,  becomes  an  independent  organization  pertaining  to 
the  Military  Academy  alone  and  removed  from  the  Corps  of  Engi- 
neers as  a  part  of  that  organization ;  and,  not  having  a  band,  its  pro- 
portion of  the  profits  of  the  post  exchange,  coming  within  the  opera- 
tion of  said  General  Orders,  should  be  paid  to  tlie  band  serving  at 
the  post. 

(8-140,  Aug.  24,  1912.) 


MILITARY  JUEISDICTTOK:  Civil  Service  employee  of  the  Quartermaster's 
Department  at  Fort  Bayard,  New  Mexico. 

It  was  reported  that  a  Civil  Service  emijloyee  employed  as  a 
plumber's  helper  by  the  Quartermaster's  Department  at  Fort  Bayard, 
New  Mexico,  was  a  chronic  alcoholic,  and  when  under  the  influence  of 
liquor  was  unruly  and  pugnacious,  and  was  frequently  absent  from 
his  duties;  and  further  that  he  had  been  given  a  summary  punish- 
ment of  one  month's  confinement  in  the  guardhouse,  being  perm.itted 
during  the  day  to  perform  his  regular  duties  as  plumber's  helper. 
Held,  that  as  he  was  not  an  inmate  of  the  hospital  at  that  place,  but 
only  a  Civil  Service  employee  therein,  he  did  not  come  within  the 
provisions  of  the  act  of  June  12.  1906  (34  Stat.,  255),  providing  that 
all  persons  admitted  to  treatment  in  the  general  hospital  at  that  post 
should  be  subject  to  the  rules  and  articles  for  the  government  of  the 
Army  of  the  United  States,  and  that  therefore  hissummary  punish- 


DIGEST    OF   OPIXIONS   OF    THE   JUDGE   ADVOCATE   GENEEAL.  41 

iiieiit  in  the  guardhouse  -svas  illegal,  although  he  accepted  this  punish- 
juent  in  preference  to  having  charges  preferred  again-t  him  with  a 
view  to  his  removal  from  the  service. 
(10-230,  July  15  and  Aug.  8.  1912.) 


MILITARY  RESERVATIONS :  Erection  of  sectarian  chapels  upon  reserva- 
tions. 

Upon  application  for  a  site  on  the  military  reservation  at  Foit 
William  McKinley.  P.  I.,  upon  which  to  erect  a  chapel,  no  mention 
being  made  as  to  whether  it  was  to  be  used  for  sectarian  or  nonsec- 
taria.n  purposes,  but  the  applicant  belonging  to  the  Ronuin  Catholic 
Church.  Held,  following  the  opinion  of  the  Attorney  (xeneral  of 
May  8,  1897  (21  Op.,  537),  in  the  matter  of  the  contemplated  erec- 
tion of  a  Catholic  chapel  at  West  Point.  X.  Y..  that  no  authority 
exists  in  the  Secretary  of  War  to  grant  a  license  for  the  erection  of  a 
sectarian  chapel  upon  the  militarv  reservation,  but  that  since  the  pas- 
sage of  the  Act  of  May  31.  1902  (32  Stat.,  282).  authorizing  the 
Secretary  of  War  to  permit  the  construction  of  buildings  by  the 
Young  Men's  Christian  Association,  a  license  might  be  given  for  the 
construction  of  a  nonsectarian  chapel  as  a  place  of  worship  for  all 
denominations. 

(80-815.  July  26,  1912.) 

MILITARY  RESER^VATIONS:  Jurisdiction  of  the  United  States  over,  in 
New  Mexico;  taxation  of  Government  agencies. 

Upon  inquiry  as  to  the  legal  status  of  the  Fort  Bayard  Military 
Reservation  in  Xew  Mexico.  Held,  that  when  Xew  Mexico  was  erected 
into  a  State  of  the  Union  no  reservation  w^as  niade  by  Congress  of 
exclusive  jurisdiction  over  the  military  reservations  situated  therein, 
and  it  follows  that  the  Federal  reservations  in  that  State  are  merely 
pieces  of  real  estate  belonging  to  the  Government  and  are  subject 
to  the  laws  of  the  State  as  is  real  property  of  any  other  owner  ex- 
cept, of  course,  that  the  State  may  not  interfere  directly  or  indirectly 
with  the  operation  of  the  agencies  of  the  United  States.  Held  fur- 
ther, that  while  automobiles  used  on  the  reserA^ations  by  private 
parties  are  subject  to  license  and  taxation  by  the  State  an  automo- 
bile ambulance  belonging  to  the  Ignited  States  is  exempt  from  tax- 
ation.   Fort  Leavenicorth  R.  R.  Co.  v.  Loice  (114  U.  S.,  525.) 

(90-125,  Sept.  16,  1912.) 


MILITIA:  Aids  to  commanders-in-chief  and  brigadier  generals;  unassigned 
list. 

Upon  consideration  of  the  question  as  to  whether  or  not  aids  can 
be  appointed  to  the  governors  as  commanders-in-chief  of  the  Organ- 
ized Militia  and  to  brigadier  generals  of  such  service  conformably 
with  the  provisions  of  section  3  of  the  Militia  act  of  January  21, 
1903  (32  Stat.,  775),  as  amended  by  section  2  of  the  act  of  May  27, 
1908  (35  Stat.,  339)."  Held,  that  aids  appointed  and  commissioned 
for  brigadier  generals  in  the  Organized  Militia  of  the  same  number 
and  grade  as  authorized  by  law  for  officers  of  corresponding  rank 
in  the  Regular  Army  of  the  United  States  may  be  recognized  as  a 
part  of  the  Organized  ]Militia.  and  it  is  not  required  that  they  be 


42  DIGEST   OF    OPTXIOXS   OF   THE    JUDGE   ADVOCATE   GENERAL. 

c()iiiuii.ssione<l  in  any  particular  line  or  staff  corps,  but  that  no  such 
aids  ai)p()inted  for"  the  commander-in-chief  of  the  militia  may  be 
so  recognized  as  the  law  does  not  provide  for  aids  to  the  commander- 
in-chief  of  tlie  Army  of  the  United  ^States.  Held  fwptliei\  that  officers 
a])i)ointed  in  the  militia  in  excess  of  the  requiiements  of  their  or- 
ganizations and  not  needed  for  staff  duties  in  connection  therewith, 
can  not  be  recognized  as  part  of  the  Organized  Militia.  The  addi- 
tional list  of  officers  in  the  United  States  Army  authorized  for 
detail  to  various  duties  not  directly  connected  with  military  adminis- 
tration, does  not  constitute  a  military  organization  within  the 
meaning  of  section  3  of  said  act  of  January  21,  1003,  and  no  such 
body  of  officers  can  be  recognized  as  such  as  a  part  of  the  Organized 
Militia. 

(58-213,  July  17,  1912.) 

MILITIA:  Expense  of  hiring'  mounts  for  officers  for  the  purpose  of  partici- 
pating in  joint  maneuvers. 

A  bill  of  $000  v.as  incurred  by  the  kState  of  Missouri  in  the  hire  of 
horses  for  mounts  for  officers  of  the  State  Militia  for  the  purpose  of 
participating  in  the  joint  maneuver  campaign  in  the  State  of  Kansas. 
Jleld,  that  the  expense  of  hiring  such  mounts  should  be  paid  from  the 
appropriation  accruing  to  the  State  under  section  1661,  Revised 
Statutes,  as  amended  by  the  act  of  June  22,  1906  (34  Stat.,  449,  450), 
and  not  from  the  appropriation  for  "  Encampments  and  Maneuvers, 
Organized  Militia."    18  Comp.  Dec,  361. 

(58-424,  Sept.  18,  1912.) 

OATHS:  Authority  to  administer;  chief  clerks  of  executive  departments  and 
clerks  desig-nated  by  them. 

Section  8  of  the  Sundry  Civil  Act  of  August  24,  1912  (Public  No. 
302).  authorizes  certain  officers  and  clerks  to  administer  oaths  re- 
quired by  law  or  otherwise  to  accounts  for  travel  and  other  expenses 
against  the  Ignited  States,  including  "Chief  clerks  of  the  Aarious 
executive  departments  and  bureaus,  or  clerks  designated  by  them  for 
the  pui'pose."  On  recommendation  of  the  Chief  of  Engineers  that 
certain  chief  clerks  and  clerks  at  engineer  offices  and  suboffices  of 
the  engineer  department  at  large  be  designated  to  administer  such 
oaths.  Flcld^  that  the  designation  of  a  clerk  in  any  bureau  should 
be  left  to  the  chief  clei'k  of  that  bui'eau  who  may  designate  one  or 
more  clerks  of  his  bureau  for  this  purpose  in  case  he  himself  does 
not  administer  oaths,  but  there  is  no  authority  foi-  the  designation  of 
an  unlimited  number  of  clerks  throughout  the  United  States  for  that 
purpose. 

(94-420,  Sept.  14,  1912.) 


OrnCERS   AND  EMPLOYEES:   Teacher  of   French  in   the  United  States 
Military  Academy;  oath  of  office. 

Section  1757.  Eevised  Statutes,  provides  that  wlien  any  person  is 
elected  or  appointed  to  any  office  of  honor  or  trust  under  the  Govern- 
ment of  the  United  States  he  shall  take  an  oath  providing  in  part  as 
follows: 

^  "That  I  will  support  and  defend  the  Constitution  of  the  United 
States  against  all  enemies,  foreign  and  domestic;  that  I  will  bear  true 


DIGEST  OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.  43 

faith  and  allegianee  to  the  same;  *  *  *  mif]  that  I  will  well  :ind 
faithl'iill}'  discharge  the  duties  of  the  office  on  which  I  am  about  to 
enter."" 

For  several  years  past  the  annutil  appropriation  acts  for  the  sup- 
port of  the  l^nite<l  States  Military  Academy  have  contained  the  fol- 
lowing item : 

"For  pay  of  two  civilian  instructors  in  French,  to  be  employed 
under  rules  prescribed  by  the  Secretary  of  War,  $-2,000  each,  $-l,0(i();" 
and  under  this  authority  the  Secretary  of  War  has  established  cer- 
tain rules,  and  has  employed  French  citizens  as  civilian  instructors. 
A  French  citizen  emploved  as  one  of  such  instructors,  on  taking  the 
oath  i)rescribed  by  the  above  section  of  the  Revised  Statutes,  omitted 
therefrom  the  word  "  allegiance."  HeJd^  that  there  is  serious  doubt 
as  to  whether  or  not  the  civilian  instructor  in  French  at  the  Military 
Academy  holds  an  office  as  contemplated  by  law;  but  being  in  this 
case  a  foreign  citizen,  in  view  of  the  opinion  of  the  Attorney  General 
(28  Op.  Atty.  Gen.  608).  even  should  he  be  holding  an  office,  he  need 
not  be  required  to  take  that  portion  of  the  oath  promising  allegiance 
to  the  United  States.  It  is  therefore  recommended  that  the  oath 
taken  be  accejited. 

(50-111.5,  Sept.  10,  1912.) 


PENALTY  ENVELOPES;  Use  by  post  laundries. 

As  penalty  envelopes  are  authorized  to  be  used  when  ^^w^?  matter 
mailecl  relates  "  exclusively  to  the  business  of  the  Government  of  the 
United  States,"'  they  may  be  used,  in  carrying  on  the  necessary  cor- 
respondence, the  mailing  of  price  lists,  laundry  slips,  etc.,  required  by 
the  laundry  business  of  post  laundries  established  pursuant  to  Army 
Eegulations. 

(22-022,  Aug.  15,  1912.) 

OFFICERS  AND  EMPLOYEES:   Teacher  of  Frencli  in  the  United  States 
participation  in  profits. 

A  regiment  stationed  at  a  post  where  there  was  a  post  exchange,  in 
which  its  constituent  organizations  held  membership,  was  under 
orders  to  go  to  the  Philippines,  and  the  value  of  the  shares  of  the 
respective  organizations  Avas  appraise<l  by  a  board  as  of  date  August 
25,  1911.  The  board  fiu-ther  recommended  that  the  regimental 
organizations  be  paid  their  share  of  accrued  profits  to  the  date  of 
their  departure  from  the  post.  This  recommendation  was  not  ap- 
proved by  the  exchange  council,  and  the  commander  concurred  in 
its  action.  Held.,  that  the  organizations  of  the  regiment  ceased  to  be 
members  of  the  exchange  after  August  25,  1911,  and  were  not  respon- 
sible for  the  debts  of  the  exchange  nor  entitled  to  share  in  its  profits 
after  that  date,  and  that  the  recommendation  of  the  board  of  ap- 
praisers was  sim[)ly  advisory  and  did  not  deprive  the  exclunige 
council  of  its  authority  to  detennine  whether  or  not  the  organizat!(ms 
of  the  regiment  shoukl  participat-e  in  the  profits  of  the  exchange 
after  said  date. 

(40-142,  Sept.  28,  1912.) 


44  DIGEST    OF    OPINIONS    OF    THE    JUDGE   ADVOCATE    GENERAL. 

PROMOTION:  Service  under  prior  appointment  in  the  Medical  Corps  to 
entitle  to  promotion. 

Section  2  of  the  act  of  April  23,  1908  (35  Stat.,  G7),  provides  that 

"  First  lieutenants  shall  be  promoted  to  the  grade  of  captain  after 
three  vears'  service  in  the  Medical  Corps." 

An  officer  served  in  the  Medical  Corps  for  over  two  years,  and  then 
resigned  from  the  service.  He  was  afterwards  reappointed  and  com- 
missioned a  first  lieutenant  in  the  Medical  Corps.  Ueld^  that  his 
service  rendered  prior  to  his  resignation  could  not  be  counted  as  a 
part  of  the  three  years'  service  in  the  Medical  Corps  to  entitle  him 
to  promotion  to  the  grade  of  captain. 

(C.  23135-A,  June  1,  1912.) 

PUBLIC   PROPERTY:   Chartering   of  a   U.    S.    Army   transport  to   private 
parties. 

The  local  military  authorities  of  the  Philippine  Islands  recom- 
mended that  the  U.  S.  A.  T.  Seirard^  which  had  been  recommended 
for  survey  with  a  view  to  condemnation,  be  chartered,  pending  legis- 
lation authorizing  its  final  disposition,  to  private  parties  who  had 
offered  to  pay  the  United  States  $1,000  per  month  for  its  use  and  to 
insure  the  vessel  against  loss-.  Held,  that  in  the  absence  of  congres- 
sional sanction  there  is  no  authority  for  the  disposal  of  property  of 
the  United  States  by  executive  agency,  and  that  the  chartering  of 
an  Army  transport  is  a  hiring  out  and  a  partial  disposition  of  the 
same.  Held  fuiiher^  that,  admitting  that  it  might  be  legal  to  charter 
the  vessel  to  private  parties,  complications  would  then  arise  as  to  the 
navigation  laws  of  the  Islands  to  which  the  vessel  w^ould  become  sub- 
ject as  soon  as  it  assumed  a  commercial  character;  that  the  vessel 
would  have  to  be  registered,  and  that  when  placed  in  the  position  of 
a  commercial  vessel  it  would  become  liable  in  certain  cases  to  seizure 
and  to  fulfill  many  obligations  involving  severe  penalties  for  their 
violation,  all  of  which  Avould  constitute  an  insuperable  objection  to 
chartering. 

(94-111,  Aug.  2G,  1912.) 

PUBLICATIONS:  Expenses  of  public  distribution;  Section  8,  act  of  August 
23,  1912. 

Section  8  of  the  Legislative,  Executive,  and  Judicial  Appropria- 
tion Act  of  August  23,  1912  (Public  No.  299),  prohibits  any  expendi- 
ture after  October  1,  1912,  from  appropriations  contained  in  said  act 
"  for  services  in  any  executive  department  *  *  *  in  the  work  of 
addressing,  wrapping,  mailing,  or  otherwise  dispatching  any  publi- 
cation for  public  distribution,"  and  provides  for  such  distribution  by 
the  Government  Printing  Office. 

Held^  that  the  work  of  distributing  printed  reports  of  bureaus  and 
other  publications  that  are  needed  for  official  use  in  the  conduct  of 
their  business,  or  the  work  of  mailing  copies  of  such  publications  to 
members  of  Congress  and  other  Government  officials  who  may  apply 
tor  them  for  official  use,  or  in  replying  to  persons  requesting  informa- 
tion, do  not  come  within  the  meaning  of  the  act  and  the  work  of 
such  distribution  should  not  be  turned  over  to  the  Government  Print- 


DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.  45 

ing  Office.  Held  further,  that  the  distribution  by  way  of  exchange 
for  other  publications  of  a  professional  or  scientific  character  should 
not  be  regarded  as  a  "  public  distribution  "  within  tlie  meaning  of 
the  act. 

(50-020,  Sept.  23  and  24,  1912.) 


QUARTERMASTER  CORPS:  Organization  of  under  the  Army  Appropria- 
tion Act  of  August  24,  1912;  detail  of  officers  to. 

The  Quartermaster  Corps  provided  for  by  section  3  of  the  Army 
Appropriation  Act  of  August  24,  1912  (Public  Xo.  338),  came  into 
legal  existence  on  the  date  of  the  approval  of  the  act  to  the  extent 
that  no  detail  to  the  grade  of  captain  can  be  made  thereto  until  the 
number  of  officers  of  that  grade  in  said  corps  has  been  reduced  below 
the  authorized  consolidated  strength  of  102. 

(6-224,  Aug.  28,  1912.) 


QUARTERMASTER  CORPS:  Organization  of  under  the  Army  Appropria- 
tion Act  of  August  24,  1912;  taking  effect  of  act. 

Section  3  of  the  Army  Appropriation  Act  of  August  24,  1912 
(Public  No.  338),  provides  that  the  offices  of  the  Quartermaster  Gen- 
eral, the  Commissary  General,  and  the  Paymaster  General  shall  be 
consolidated  into  a  single  bureau  known  as  the  Quartermaster  Corps, 
and  provides  further — 

"  That  for  the  purpose  of  carrying  into  effect  the  provisions  of  this 
section  the  President  is  hereby  authorized  to  appoint,  by  and  with 
the  advice  and  consent  of  the  Senate,  a  cliief  of  the  Quartermaster 
Corps  herein  provided  for,  immediately  upon  the  passage  of  this 
Act,  and  it  shall  be  the  duty  of  the  said  chief,  under  the  direction  of 
the  President  and  the  Secretary  of  War,  to  put  into  effect  the  provi- 
sions of  this  section  not  less  than  sixtv  days  after  the  passage  of  this 
Act." 

Held,  that  such  provisions  of  said  section  3  as  became  operative 
without  executive  action  went  into  effect  immediately  upon  the  pas- 
sage of  the  act  and  therefore  that  the  new  designation  given  to 
officers  by  the  act  should  be  used  in  referring  to  the  officers  of  the 
consolidated  corps,  and  that  the  details  to  the  consolidated  corps  or 
to  any  of  the  bureaus  composing  it  could  not  be  made  or  become 
effective  until  the  number  of  officers  in  the  consolidated  corps  had 
been  reduced  to  the  number  authorized  by  the  law. 

Held  further,  that  the  expression  in  the  portion  of  the  act  above 
quoted  requiring  the  Chief  of  the  Quartermaster  Corps  to  put  the 
provisions  of  such  section  into  effect  "  not  less  than  sixty  days  after 
the  passage  "  of  said  act,  defines  a  period  of  limitation  before  which 
the  provisions  of  the  act  requiring  executive  action  can  not  be  carried 
into  effect  and  that  therefore  the  advancement  of  not  to  exceed  six 
captains  holding  commission  in  the  Quartermaster  Corps  to  the 
grade  of  major  as  authorized  by  the  act,  not  taking  effect  by  oper- 
ation of  the  law,  but  requiring  executive  action,  must  be  postponed 
to  the  end  of  sixty-day  period. 
(64-250,  Sept.  3,  1912.) 


46  DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

QUARTERMASTER  CORPS:  Org-anization  of;  men  enlisted  to  take  the  place 
of  civilian  employees. 

Section  4  of  the  Army  Appropriation  Act  of  August  24,  1912 
(Public  No.  338),  provides: 

'•  That  as  soon  as  practicable  after  the  creation  of  the  Quarter- 
master Corps  in  the  Army  not  to  exceed  four  thousand  civilian  em- 
ploye^s  of  that  corps,  receiving  a  monthly  compensation  of  not  less 
than  thirty  dollar.s  nor  more  than  one  hundred  and  seventy-five 
dollars  each,  not  including  civil  engineers,  superintendents  of  con- 
struction, inspectors  of  clothing,  clothing  examiners,  inspectors  of 
supplies,  inspectors  of  animals,  chemists,  veterinarians,  freight  and 
passenger  rate  clerks,  ci\il  service  emploj'ees,  and  employees  of  the 
classified  service,  emploj'ees  of  the  Army  transport  service  and  har- 
bor boat  service,  and  such  other  employees  as  may  be  required  for 
technical  work,  shall  be  replaced  permanently  by  not  to  exceed 
an  equal  number  of  enlisted  men  of  said  corps,  and  all  enlisted  men 
of  the  line  of  the  Army  detailed  on  extra  duty  in  the  Quartermaster 
Corps  or  as  bakers  or  assistant  bakers  shall  be  replaced  permanently 
b}'  not  to  exceed  two  thousand  enlisted  men  of  said  corps;  and  for 
the  purposes  of  this  Act  the  enlistment  in  the  military  service  of 
not  to  exceed  six  thousand  men,  who  shall  be  attached  permanently 
to  the  Quartermaster  Corps  and  who  shall  not  be  counted  as  a  part 
of  the  enlisted  force  provided  by  law,  is  hereby  authorized :  Pro- 
vided^ That  the  enlisted  force  of  the  Quartermaster  Corps  shall  con- 
sist of  not  to  exceed  fifteen  master  electricians,  six  hundred  ser- 
geants (first  class),  one  thousand  and  five  sergeants,  six  hundred 
and  fifty- corporals,  two  thousand  five  hundred  privates  (first  class), 
one  thousand  one  hundred  and  ninety  privates,  and  forty-five  cooks, 
all  of  whom  shall  receive  the  same  pay  and  allowances  as  enlisted 
men  of  corresponding  grades  in  the  Signal  Corps  of  the  Army,  and 
shall  be  assigned  to  such  duties  pertaining  to  the  Quartermaster 
Corps  as  the  Secretary  of  War  may  prescribe:  Provided  further^ 
That  the  Secretary  of  War  mav  fix  the  limits  of  age  within  which 
civilian  employees  who  are  actually  employed  by  the  Government 
when  this  Act  takes  effect  and  who  are  to  be  replaced  by  enlisted 
men  under  the  terms  of  this  Act  may  enlist  in  the  Quartermaster 
Corps:  Provided  further^  That  nothing  in  this  section  shall  be  held 
or  construed  so  as  to  prevent  the  employment  of  the  class  of  civilian 
emploj^ees  excepted  from  the  provisions  of  this  Act  or  the  continued 
employment  of  civilians  included  in  the  Act  until  such  latter  em- 
ployees have  been  replaced  by  enlisted  men  of  the  Quartermaster 
Corps." 

Held,  that  the  portion  of  said  section  describing  the  classes  of  em- 
ployees not  included  within  the  provisions  of  that  portion  of  the  act 
requiring  the  substitution  of  civilian  employees  in  the  Quartermaster 
Corps  by  enlisted  men,  refers  to  the  persons  and  not  to  the  positions 
held  by  them,  and  that  as  said  positions  are  vacated  they  may  be 
filled  by  the  enlisted  men  authorized  by  said  act;  held  fvrfher,\\vAt 
under  the  authority  of  the  proviso  to  the  effect  that  nothing  in  said 
section  shall  be  held  or  construed  so  as  to  prevent  the  employment 
of  the  classes  of  civilian  employees  excepted  from  the  provisions  of 
the  a^t,  the  Secretary  of  War  m"ay  properly  direct  that,  as  to  the  em- 
ployees required  for  technical  woVk  of  the'classes  specified,  vacancies 
cccurrmg  may  be  filled  in  the  future  as  in  the  past  through  the  Civil 


DIGEST   OF   OPINIONS   OF    THE    JL^DGE   ADVOCATE   GENERAL.  47 

Service,  and  in  this  way  full  operation  can  be  given  to  the  entire  sec- 
tion authorizing-  the  enlistment  of  men  for  the  purpose  of  taking  the 
place  of  civilian  employees. 
(6-224,  Sept.  14,  1912.) 


BETIKEMEISTT:    Enlisted    men;    counting'    time    spent    in    confinement    on 
account  of  desertion. 

The  act  of  March  2,  1007  {34  Stat.,  1217)  provide,,  that 

"  When  an  enlisted  man  shall  have  served  80  years  either  in  the 
Army,  Navy,  or  Marine  Corps,  or  in  all,  he  shall,  upon  making  ap- 
plication to' the  President,  be  placed  upon  the  retired  list." 

A  soldier  deserted  and  was  apprehended  February  21,  1004,  and 
restored  to  duty  without  trial  March  6,  1004:.  Ileld^  that  the  man 
was  in  the  service  from  his  apprehen.-^ion  to  the  date  of  his  restora- 
tion to  duty  without  trial,  and  that  such  time  should  be  counted  in 
computing  the  30  vears  service  to  entitle  him  to  retirement. 

(88-800,  July  26,  1912.) 


RETIREMENT:    Paymasters'    clerks    in    the   Army;    assignment    to    active 
service. 

Upon  application  of  the  Paymaster  General  for  the  assigninent  of 
a  retired  paymaster's  clerk  to  active  service  for  staff  duties  in  tlie 
office  of  the  Paymaster  General.  Held,  that  the  act  of  April  2:3, 
1904  (33  Stat.,  264),  authorizing  the  assignment  of  retired  officers 
of  the  Army  to  active  duty  in  certain  cases,  has  reference  solely  to 
commissioned  officers  of  the  Army  so  retired,  and  as  army  pay- 
masters' clerks  are  not  such  commissioned  officers,  and  as  there  is 
no  statute  specifically  authorizing  their  assig-nment  to  active  duty 
after  retirement  an  army  paymaster's  clerk,  retired,  can  not  be  as- 
signed to  such  active  dnt\\ 

(88-700,  Aug.  17,  1912.) 


TRANSPORTATIOlSr:  Use  of  XT.  S.  A.  T.  *'  Buford  "  in  rescuing  American 
refugees  in  Mexico. 

At  the  request  of  the  Secretary  of  State  and  upon  the  ordei-  of  the 
President,  the  Secretary  of  War  sent  the  U.  S.  A.  T.  Bnfovd  on  a 
vovage  along  the  west  coast  of  Mexico  for  the  pu.i-pose  of  obtaining 
information  as  to  conditions  affecting  x\merican  interests  in  that 
country  and  to  furnish  relief  to  American  citizens  and  transport 
such  of  them  to  their  homes  as  desired  to  leave  the  country.  This 
occurred  at  a  time  of  great  political  disturbance  in  Mexico  and  when 
portions  of  the  Army  were  being  as.^embled  on  the  IMexican  border 
in  view  of  such  disturbance.  Held,  that  the  expedition,  although 
undertaken  at  the  request  of  the  State  Department,  was  ordered  by 
the  President  and  might  have  been  undertaken  by  tlie  War  Depart- 
ment itself  and  was  germane  to  the  purposes  for  which  the  Army 
had  been  used  on  the  Mexican  border,  and  that  the  expenses  incurred 
therefor  miglit  properly  be  paid  from  War  Department  appropria- 
tions. 

(04-UO,  July  17,  1912.) 


48  DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

DECISIONS   OF  THE  COMPTROLLEIl  OF  THE   TREASTJEY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate.  General.) 

COMMUTATION  OF  QUARTERS:  Temporary  absence  from  permanent 
station. 

An  officer  was  temporarily  absent  from  his  permanent  station, 
where  he  still  retained  his  quarters,  on  duty  m  connection  with  an 
investigation  of  the  Philadelphia  Depot,  Quartermaster  s  Depart- 
ment and  while  so  engaged  stopped  for  various  periods  at  1  hiladel- 
phia.'Pa.,  and  Washington,  D.  C,  where  he  was  not  furnished  quar- 
ters. On  the  question  of  his  right  to  commutation  of  quarters  at 
the  places  of  temporary  duty.  Held,  that  while  attached  to  a  station 
and  in  receipt  of  quarters  thereat  the  officer  could  not  at  the  same 
time  claim  commutation  of  quarters  at  his  post  of  temporary  duty. 

(Asst.  Compt.  L.  P.  Mitchell,  Aug.  12,  1912.) 


EMPLOYEES:   Payment  of,  from  lump-sum  appropriations.     Acts  of  August 
23  and  28,  1912. 
Section  7  of  the  General  Deficiency  Act  of  August  26,  1912  (Public 
No.  340),  provides: 

"  No  part  of  any  money  contained  herein  or  hereafter  appropriated 
in  lump  sum  shall  be  available  for  the  payment  of  personal  services 
at  a  rate  of  compensation  in  excess  of  that  paid  for  the  same  or 
similar  services  during  the  fiscal  year  nineteen  hundred  and  twelve; 
nor  shall  any  person  employed  at  a  specific  salary  be  hereafter  trans- 
ferred and  "hereafter  paid'  from  a  lump-sum  appropriation  a  rate 
of  compensation  greater  than  such  specific  salary,  and  the  heads  of 
departments  shall  cause  this  provision  to  be  enforced." 

Section  3  of  the  Legislative,  Executive,  and  Judicial  Act  of  August 
23.  1912  (Public,  No.  299),  contains  a  similar  provision  except  that 
the  lump-sum  appropriations  effected  by  the  first  portion  of  said  pro- 
vision are  only  those  mentioned  in  the  act.    Eespecting  the  provision 
that  no  money  appropriated  by  said  act  shall  be  available  for  the  pay- 
ment for  personal  services  at  a  rate  of  compensation  in  excess  of  that 
paid  for  the  same  or  similar  services  during  the  fiscal  year  1912. 
Held^  that  this  does  not  mean  that  individual  employees  may  not  be 
promoted  and  paid  increased  compensation,  provided  that  the  new 
rate  does  not  exceed  the  rate  paid  for  the  same  or  similar  services 
during  the  year  1912.    Assuming  that  the  different  places  are  classi- 
fied to  suit  the  varying  degrees  of  experience  and  efficiency,  there  is 
nothing  to  prohibit  the  promotion  of  an  employee  from  one  class  to 
tiiiother  at  an  increased  compensation.     Held  further,  that  an  em- 
ployee holding  a  statutory  position  in  the  Department  of  the  Interior, 
or  in  any  other  department,  if  otherw^ise  eligible,  can  not  be  trans- 
ferred to  another  bureau  in  said  department  and  paid  from  a  lump- 
sum appropriation  at  an  increased  compensation;  nor  can  such  em- 
ployee be  so  transferred  at  a  salary  not  in  excess  of  that  received  by 
him  in  the  department  or  bureau  from  which  transferred  and  pro- 
moted to  a  higher  salary  and  paid  from  such  lump-sum  appropri- 
ation. 

(Compt.  E.  J.  Tracewell,  Sept.  o  and  9,  1912.) 


DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.  49 

ENLISTMENT:    Three  months'  reenlistment  pay  on  discharge  as  corporal 
and  reenlistment. 

The  act  of  May  11,  1908  (35  Stat.,  110),  provides  that  "any  private 
soldier,  musician,  or  trumpeter  honorably  discharged  "  shall  be  en- 
titled to  three  months'  pay  on  reeinlistment  within  a  certain  period. 
Section  31  of  the  act  of  February  2,  1901  (31  Stat.,  750),  provides 
for  detaching  a  certain  number  of  enlisted  men  for  recruiting  service 
and  provides  that  while  performing  such  duty  one  member  of  the 
party  shall  have  the  rank,  pay,  and  allowances  of  sergeant,  and 
another  the  rank,  pay,  and  allowances  of  corporal.  A  private 
soldier  in  the  general  service  so  detailed  on  a  recruiting  party  and 
given  the  rank,  pa}^,  and  allowances  of  corporal  was  honorably  dis- 
charged while  performing  such  duty  and  reenlisted  within  the  stat- 
utory period  to  entitle  him  to  three  months'  reenlistment  pay.  Ileld^ 
that  the  act  relating  to  the  detail  of  enlisted  men  for  recruiting  serv- 
ice was  not  intended  to  increase  the  number  of  sergeants  and  cor- 
porals in  the  Army,  and  that  the  soldier  was  a  "  private  soldier  " 
Avithin  the  meaning  of  the  law  at  the  time  of  his  discharge,  and  upon 
his  reenlistment  became  entitled  to  reenlistment  pay. 

(Asst.  Compt.  L.  P.  Mitchell,  Aug.  29,  1912.) 


FORAGE:   Issue    of,    to    military    attaches    for    horses    kept    as    authorized 
mounts  but  not  owned  by  them. 

A  military  attache  serving  abroad  purchased  for  himself  forage 
for  the  use  of  a  horse  hired  and  kept  by  him  as  his  authorized  mount, 
but  not  owned  by  him. 

Section  1272,  Revised  Statutes,  provides: 

"  Forage  shall  be  allowed  to  officers  only  for  horses  authorized  by 
law,  and  actually  kept  by  them  in  service  when  on  duty  and  at  the 
place  where  they  are  on  duty." 

Section  8  of  the  act  of  June  18,  1878  (20  Stat.,  150),  provides: 

"  Forage  in  kind  may  be  furnished  to  the  officers  of  the  Army,  by 
the  Quartermaster's  Department,  only  for  horses  owned  and  actu- 
ally kept  by  such  officers  in  the  performance  of  their  official  military 
duties  when  on  duty  with  troops  in  the  field  or  at  such  military  posts 
west  of  the  Mississippi  River  as  may  be  from  time  to  time  designated 
by  the  Secretary  of  War,  and  not  otherwise,  as  follows:  *  *  *  " 
■  The  act  of  February  24,  1881  (21  Stat.,  347),  provides: 

""  That  there  shall  be  no  discrimination  in  the  issue  of  forage 
against  officers  serving  east  of  the  Mississippi  River,  provided  they 
are  required  by  law^  to  be  mounted,  and  actually  keep  and  own  their 
own  animals." 

Held,  that  under  the  provisions  of  the  laws  quoted  forage  can  be 
allowed  to  officers  of  the  Army  only  for  the  authorized  number  of 
horses  which  are  actually  owned  and  kept  by  them  at  the  place 
where  they  are  on  duty,  and  that  the  amounts  expended  for  forage 
in  this  case  should  be  disallowed. 

(Asst.  Compt.  L.  P.  Mitchell,  July  12,  1912.) 

93668°— 17 4 


50  DIGEST    OF    OPINIOXS    OF    THE    JUDGE    ADVOCATE    GEXEKAL. 

INDIAN  SCHOOLS:   Retired  Army  officers  acting  as  superintendents;  omce. 

The  act  of  3.1ardi  1,  lOOT  (U  Stat.,  1020 ),  provides  that— 

"The  Coniinisisoner  of  Indian  Aifairs,  with  the  approval  of  the 
Secretary  of  the  Interior,  may  devolve  the  duties  of  any  Indian 
agency  or  part  thereof  upon  the  superintendent  of  the  Indian  school 
located  at  such  agencv  or  part  thereof  whenever  in  his  judgnient 
such  superintendent  can  properly  perform  the  duties  cf  such  agency. 
And  tlie  superintendent  upon  whom  said  duties  devolve  shall  give 
bond  as  other  Indian  agents." 

The  duties  of  an  Indian  agent  are  defined  by  statute  (sec.  20.58, 
Rev.  Stat.;  Romero  v.  U.  S.,  24  Ct.  CL,  331),  and  their  salary  and 
term  of  office  are  fixed  by  law  (sees,  2055  and  205(5,  Eey,  Stat.).  The 
salary  of  a  superintendent  performing  agency  duties  is  fixed  not  to 
exceed  $300  more  than  he  would  have  received  as  superintendent  not 
performing  such  duties  (act  of  March  1,  1907,  supra). 

IJelfL  that  the  superintendent  of  an  Indian  school  performing  the 
duties  of  an  Indian  agency  is  holding  an  office  to  which  compensa- 
tion is  attached  within  the  i)rohibition  of  the  act  of  July  31.  1894 
(28  Stat.,  205),  and  a  retired  officer  of  the  Army  whose  compensa- 
tioji  amounts  to  $2,500  or  more  is  prohibited  from  liolding  such  posi- 
tion. 

(Compt.  E.  J.  Tracewell.  Sept.  7.  1912.) 


TELEPHONE  SEBVICE:  Payment  for  in  buildings  owned  by  the  Govern- 
ment and  used  as  private  residences. 

Section  7  of  the  Legislative.  Executi\e.  and  Judicial  Appropria- 
tion Act  of  August  23,^1912  (Public,  No.  299),  provides: 

'"  That  no  money  appropriated  by  this  or  any  other  act  shall  be 
expended  for  telephone  service  installed  in  any  private  residence  or 
private  apartment,  or  for  tolls  or  other  charges  for  telephone  serv- 
ice from  private  residences  or  private  apartments,  except  for  long- 
distance telephone  tolls  required  strictly  for  public  business.   "    *   "^^ 

Held,  that  the  buildings  assigned  as  residences  to  the  superintend- 
ent and  to  the  medical  director  of  the  Hot  Springs  Reservation  situ- 
ated on  the  reservation  and  belonging  to  the  Government,  notwith- 
standing they  are  public  property,  are,  when  turned  over  for  the 
private  personal  use  of  Government  officials,  none  the  less  private 
residences  within  the  meaning  of  said  act,  and  that  telephone  serv- 
ice therein  should  not  be  paid  fcr  from  public  funds. 

(Compt.  R.  J.  Tracewell,  Sept.  25,  1912.) 


TRANSPOUT  SERVICE:    Quarters  or  commutation   thereof  for  an   officer 
of  the  Army  while  temporarily  performing-  duty  tiiereoii. 

IlelfL  that  an  officer  of  the  Army  regularly  a  signed  to  a  station  at 
a  home  port  and  who  is  ordered  to' make  a  trip  on  an  Army  transport 
and  to  perform  duty  thereon  during  the  vovage,  is  temporarily 
absent  from  his  station  on  dutv  and  ts  entitled  to  quarters  or  coni- 
mutation  at  his  permanent  station. 

(Asst.  Compt.  L.  P.  Mirchell,  Aug.  19.  1912.) 

Otherwise  if  his  orders  are  suclf  as  to  practicallv  assign  him  to 
station  on  the  ship. 

(Asst.  Compt.  L.  P.  Mitchell,  July  5,  1912.) 


DIGEST   OF    OPINIONS   OF    THE   JUDGE    ADVOCATE   GENERAL.  51 

WAR  DEPARTMENT:   Filling'  clerical  positions  therein;  act  of  August  23, 
1912. 

The  Legislative,  Executive,  and  Judicial  Appropriation  Act  of 
August  :>3,  1912  (Public  No.  201),  p.  21)),  provides  that 

'•  During  the  fiscal  year  1913  no  \acancy  occurring  in  the  classified 
service  of  the  War  Department  herein  provided  for  shall  be  filled 
except  by  promotion  or  demotion  from  among  those  within  said 
service,  until  the  whole  number  of  those  herein  authorized  in  said 
classified  service  of  the  Department  shall  have  been  reduced  not  less 
than  five  per  centum." 

On  application  for  a  construction  of  this  pnnision  by  the  Secre- 
tary of  War.  Held,  1.  That  the  places  in  the  classified  service  pro- 
vided for  in  said  act  in  the  Signal  Oflice,  Office  of  the  Chief  of  Ord- 
nance, Office  of  the  Chief  of  Engineers,  and  in  the  Division  of 
Militia  Affairs,  to  be  paid  from  appropriations  for  special  purposes 
not  cari'ied  in  said  act,  are  a  part  of  the  departmental  establishment 
at  Washington  and  come  within  the  provision  quoted  above;  2.  That 
the  intent  of  the  statute  appears  to  be  that  during  the  fiscal  year  1913 
no  vacancies  shall  be  filled  except  in  accordance  with  its  provisions 
and  that  therefore  vacancies  existing  at  the  time  the  act  went  into 
effect  shou.ld  not  be  filled  except  as  therein  provided;  3.  That  all 
vacancies  occurring  during  the  fiscal  year  1913  in  the  classified  serv- 
ice of  the  War  Department  until  the  five  per  cent  reduction  has  been 
accomplished  must  be  filled  from  among  those  within  said  service 
and  can  not  be  filled  by  promotion  or  demotion  of  employees  from 
the  field  service  and  their  transfer  to  the  bureaus  in  Washington,  as 
the  act  relates  exclusively  to  the  classified  service  in  the  departmental 
establishment  at  the  seat  of  government. 

(Compt.  R.  J.  Tracewell.  Aug.  28,  1912.  reaffirmed  on  rehearing 
Sept.  7,  1912.) 

OPINIONS  OF  THE  ATTOENSY  GENEEAL. 

(Digests  prepared  in  the  ottice  of  the  .JuUge  Advucate  Ueueral. ) 

EIGHT-HOUR  LAW:   Employment  of  laborers  and  mechanics  in  making 
repairs  to  Government  vessels. 

The  act  of  August  1,  1892  (27  Stat.,  3-10),  limits  and  restricts  the 
service  and  employment  of  all  labtu'ers  and  mechanics  who  may  be 
emplo3^ed  by  any  contractor  or  subcontractor  "  upon  any  of  the  public 
works  of  the  United  States"  to  eight  hours  in  any  one  calendar  day. 
Upon  request  for  an  opinion  as  to  whether  said  law  is  applicable  to 
contracts  for  repairs  to  certain  vessels  owned  by  the  Government. 
HeJd^  that  the  employment  of  laborers  and  mechanics  in  making 
repairs  to  Government  vessels  is  employment  upon  a  public  work  of 
the  United  States,  and  is  therefore  subject  to  the  restrictions  of  the 
eight-hour  law  of  August  1,  1892. 

(29  Op.  Atty.  Gen..  395.  May  10,  1912.) 


EIGKT-HOTJR  LAW:  Purchase  of  ammunition. 

The  Fortification  Act  of  June  6.  1912  (Public  Xo.  183),  contains 
the  proviso  that — 

"  Except  in  time  of  war  or  when,  in  the  judgment  of  the  President, 
war  is  inuninent,  no  part  of  this  or  of  any  other  sum  in  this  act  for 


52  DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

iiiHiuunition  shall  be  expended  for  the  purchase  of  any  ammiinition 
from  any  person,  finn,  or  corporation  Avhich  has  not  at  the  time  of 
commencement  of  said  work  established  an  eight-hour  workday  for 
all  employees,  laborers,  and  mechanics  engaged  or  to  be  engaged  in 
the  work  of  manufacturing  the  ammimition  named  herein." 

Upon  submission  of  certain  questions  based  upon  said  proviso. 
Held.,  that  the  requirement  of  the  law  that  a  contractor  for  ammuni- 
tion shall  have  established  an  eight-hour  workday  for  all  of  his 
employees  engaged  upon  the  work  under  contract  is  to  be  construed 
as  prohibiting  his  working  such  employees  more  than  eight  hours  a 
day.  Uehl  further^  that  the  eight-hour  workday  restriction  of  this 
proviso  does  not  apply  to  purchases  of  ammunition  made  abroad. 

(29  Op.  Atty.  Gen.,  488,  July  1,  1912.) 


EIGHT-HOUR    LAW:   Act    of    June    19,    1912;    contract    for    Government 
supplies. 

Section  1  of  the  act  of  June  19,  1912  (Public  Xo.  199),  requires  that 
all  Government  contracts  shall  contain  a  provision  that  the  con- 
tractor shall  not  permit  any  of  the  laborers  or  employees  engaged 
under  the  same  to  work  more  than  eight  hours  in  any  one  calendar 
day,  Avith  a  penalty  prescribed  to  be  enforced  in  case  of  violation. 
Section  2  of  the  act  excepts  from  the  provisions  of  section  1  certain 
contracts,  among  others,  contracts  for  the  purchase  of  Government 
supplies  with  the  proviso  that  the  act  shall  nevertheless  apply  to  all 
contracts  for  manufacture  of  supplies  which  the  Government  "  has 
been,  is  now,  or  may  hereafter  "  engage  in  manufacturing.  Held^ 
that  the  words  quoted  ai-e  intended  only  to  limit  the  (xovernment 
officers  so  that  when  the  Government  shall  be  engaged  generally  in 
the  manufacture  of  supplies  or  in  work  where  the  eight-hour  law 
applies,  they  can  not  practically  evade  the  provisions  of  the  law  by 
turning  over  such  manufacture  to  contractors,  but  that  under  such 
conditions  the  contract  for  supplies  must  be  performed  under  the 
restrictions  of  the  law  and  that  it  is  immaterial  whether  the  mate- 
rial is  supplied  by  the  Government  or  not.  Subject  to  this  excep- 
tion the  act  does  not  apply  to  the  purchase  or  manufacture  of  sup- 
plies. Held  further^  that  under  the  provisions  of  section  3  of  said 
act  which  provides  that  the  same  shall  not  go  into  effect  until  Janu- 
ary 1.  1913,  the  requirements  of  said  act  do  not  apply  to  contracts 
entered  into  before  that  time,  although  they  may  extend  beyond  said 
date. 

(Op.  Atty.  Gen.,  Aug.  19,  1912.) 


RETIREMENT:   Retired  officers  of  the  Army  and  Marine  Corps;  acting  as 
agents  in  the  prosecution  of  claims  against  the  Government. 

Section  1782,  Eevised  Statutes,  provides— 

"No  Senator,  Representative,  or  Delegate,  after  his  election  and 
during  his  continuance  in  office,  and  no  head  of  a  Department,  or 
other  officer  or  clerk  in  the  employ  of  the  Government,  shall  receive 
or  agree  to  receive  any  compensation  whatever,  directly  or  indirectly, 
for  any  services  rendered,  or  to  be  rendered,  to  any"  person,  either 


DIGEST  OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.  53 

by  himself  or  another,  in  relation  to  any  proceeding,  contract,  claim, 
controversy,  charge,  accusation,  arrest,  or  other  matter  or  thing  in 
which  the  United  States  is  a  party,  or  directly  or  indirectly  inter- 
ested, before  any  Department,  court-martial,  Bureau,  officer,  or  any 
civil,  military,  or  naval  commission  whatever.     *     *     *  " 

The  portion  of  the  section  not  quoted  prescribes  penalties  against 
those  violating  the  preceding  portion  of  said  section. 

On  application  for  opinion  as  to  the  status  of  a  retired  officer  of 
the  Marine  Corps  with  relation  to  said  section.  HeJcU  that  an  officer 
of  the  ITnited  States  Army  or  of  the  Marine  Corps,  retired  from  ac- 
tive service,  and  not  wholly  retired,  is  an  officer  in  the  employment 
of  the  Government  and  is  within  the  prohibition  of  said  section  of 
the  Revised  Statutes. 

(29  Op.  Atty.  Gen.  397,  May  17,  1912.) 


RETIREMENT:   Retired  naval  officer  holding-  appointment  under  the  Civil 
Service  Commission;  two  offices. 

Section  2  of  the  act  of  July  31,  1894  (28  Stat.,  205),  provides  that 
no  person  who  holds  an  office  under  the  United  States,  the  salary  or 
annual  compensation  attached  to  which  amounts  to  $2,500  or  more, 
shall  be  appointed  to  or  hold  any  other  office  to  which  compensation 
is  attached,  with  certain  exceptions,  without  special  legislative  au- 
thority. Ileld^  that  a  commander  of  the  United  States  Navy,  re- 
tired, holds  an  office  with  a  salary  or  compensation  attached  within 
the  meaning  of  the  above  enactment,  and  as  he  is  in  receipt  of  a  salary 
as  such  retired  officer  amounting  to  $2,500  per  annum,  he  can  not  be 
appointed  a  clerk  of  Class  III  under  the  Civil  Service  Commission, 
that  position  being  also  an  office  within  the  meaning  of  said  statute 
with  compensation  attached  {United  States  v.  llartwell^  6  Wall., 
385). 

(Op.  Atty.  Gen.,  Aug.  12,  1912.) 


BlIXETIxl 

No.  22.  J 


BULLETIN  22. 

AVAR  DEPAETMENT, 

Washington,  November  21,  1912. 
The  following  opinions  of  the  Judge  Advocate  General,  having 
special  reference  to  the  Army  appropriation  act  of  August  24,  1912 
(37  Stat.,  569-594),  are  published  for  the  information  of  the  service 
in  general. 

[1974G00,  A.  G.  0.] 

By  order  or  the  Secretary  of  War  : 

LEONARD  WOOD, 
Major  General,  Chief  of  Staff. 
Official  : 

GEO.  ANDREWS, 

The  Adfufanf  Gen-eral.. 


OPINIONS  OE  THE  JUDGE  ADVOCATE  GENEEAL. 

[First  indorsement.] 

War  Department, 
Judge  Advocate  General's  Office, 

September  16,  1913. 
To  the  Chief  of  Staff. 

I  have  had  under  consideration  your  memorandum  of  the  9th 
instant,  i-equesting  the  opinion  of  this  office  on  certain  questions  aris- 
ing in  the  administration  of  the  following  provisions  of  the  act  of 
Congress  of  August  24,  1912,  and  of  the  joint  resolution  of  Congress 
of  the  same  date  respecting  the  detached  service  of  officers  of  the 
Army : 

"  Provided,  That  hereafter  in  time  of  peace  vrhenever  any  officer 
holding  a  permanent  commission  in  the  line  of  the  Army  with  rank 
below  that  of  major  shall  not  have  been  actually  present  for  duty 
for  at  least  tw^o  of  the  last  preceding  six  years  with  a  troop,  battery, 
or  company  of  that  branch  of  the  Army  in  which  he  shall  hold  said 
commission,  such  officer  shiill  not  be  detached  nor  permitted  to  re- 
main detached  from  such  troop,  battery,  or  company  for  duty  of 
any  kind;  and  all  pay  and  allowances  shall  be  forfeited  by  any 
superior  for  any  period  during  which,  by  his  order  or  his  pei'mis- 
sion  or  by  reason  of  his  failure  or  neglect  to  issue  or  cause  to  be 
issu.ed  the  proper  order  or  instructions  at  the  proper  time,  any  officer 
shall  be  detached  or  permitted  to  remain  detached  in  violation  of 
any  of  the  terms  of  this  proviso;  but  nothing  in  this  proviso  shall 
be  held  to  apply  in  the  case  of  any  officer  for  such  period  as  shall  be 
actually  necessary  for  him,  after  having  been  relie\ed  from  detached 
54 


DIGEST   OF   OPINIONS  OF    THE   JUDGE   ADVOCATE   GENERAL.  55 

service,  to  join  the  troop,  battery,  or  company  to  which  he  shtill  bo- 
long  in  thiit  branch  in  which  he  shall  hold  a.  permanent  commission, 
nor  shall  anything  in  this  proviso  be  held  to  apply  to  the  detachment 
or  detail  of  oificei-s  for  duty  in  the  Judge  Advocate  General's  De- 
partment or  in  the  Ordnance  Department  or  in  connection  with  the 
construction  of  the  Panama  Canal  until  after  such  canal  shall  have 
been  formally  opened,  or  in  the  Philippine  Constabulary  until  the 
first  day  of  Januai-y,  nineteen  hundred  and  fourteen,  or  to  any  officer 
detailed,  or  who  may  be  hereafter  detailed,  for  aviation  duty.  And 
hereafter  no  officer  holding  a  permanent  commission  in  tiie  Army 
with  rank  below  that  of  major  shall  be  detailed  as  assistant  to  the 
Chief  of  the  Bureau  of  Insular  Affairs  with  rank  of  colonel,  or  as 
commanding  officer  of  the  Porto  Rico  Ivegiment  of  Infantry,  or  as 
chief  or  assistant  chief  (director  or  assistant  director)  of  the  Philip- 
pine Constabulary,  and  no  other  officers  of  the  Army  shall  hereafter 
be  detailed  for  duty  with  the  said  constabulary  except  as  specifically 
provided  by  law/'     (Act  of  Aug.  24,  1912.) 

'•''Resolved  hy  the  Senate  and  Rouse  of  Representatives  of  the 
United  States  of  Ajnerlca.  in  Coyujress  assemJAcd,  That  in  the  'act 
making  ajTi^ropriation  for  the  support  of  the  Army  for  the  fiscal 
year  ending  June  thirtieth,  nineteen  hundred  and  thirteen,  and  for 
other  purposes,*  there  be  substituted  for  the  word  '  hereafter '  where 
it  first  occurs  in  the  fixrst  proviso  under  the  heading,  '  Pay  of  officers 
of  the  line,'  the  words  '  on  and  after  December  fifteenth,  nineteen 
hundred  and  twelve."'  (Joint  resolution  of  Congress.  August  24, 
1912.) 

I  imderstand  your  inquiries  to  be  as  follows: 

1.  Does  the  date  fixed  in  the  joint  resolution,  viz,  December  15, 
1912,  mark  the  date  on  which  the  penalty  clause  of  the  proviso  will 
commence  to  apply,  so  that  all  changes  in  stations  of  officers  must 
be  accomplished  on  or  bef(jre  that  date,  or  is  a  reasonable  time  given 
after  that  date  to  accomj^hsh  such  change  i 

2.  Is  the  language  of  the  proviso,  "  actually  present  for  dutj'  for 
at  least  two  of  the  last  preceding  six  years  with  the  troop,  battery, 
or  company  of  that  branch  of  the  Army  in  which  he  shall  hold  said 
commission,'"  to  be  interpreted  literally  as  meaning  that  an  officer 
must  be  actually  present  on  duty  with  a  troop,  battery,  or  company, 
or  can  it  be  fairly  interpreted  as  meaning  that  he  must  be  present 
and  available  for  duty  with  a  troop,  battery,  or  c^)mpany  ? 

More  specifically,  and  included  within  the  scope  of  this  inquiry, 
you  ask: 

3.  Is  an  officer  to  be  considered  as  actually  present  for  duty  with 
a  troop,  battery,  or  company,  or  detached  therefrom,  within  the 
sense  of  the  proviso,  when  ordered  to  the  following  descriptions  of 
duty:  To  another  post  to  take  exandnation  for  promotion;  to 'the 
Philippine  Islands,  even  if  he  is  due  to  be  transferred  on  account 
of  foreign  service;  on  court-martial  duty  at  another  })03t  as  member, 
witness,  judge  advocate,  or  counsel;  to  make  the  annual  militia  in- 
spections; for  militia  duty  at  camps  of  instruction;  for  duty  as 
umpire  or  observer  at  maneuvers;  as  range  officer  or  com])etitor  at 
competitions;  for  reconnoissance  or  map  work;  to  supervise  elec- 
tions; as  member  of  any  board  or  commission  at  a  post  other  than 
his  own;  to  conduct  prisoners;  for  duty  as  regimental  or  battalion 


56  DIGEST   OF    OPINIOIS^S   OF    THE    JUDGE   ADVOCATE   GENEEAL. 

staff  officer;  for  duty  as  post  adjutant,  quartermaster,  commissary, 
ranffe  officer,  prison  officer,  post-exchange  officer,  engmeer,  ordnance, 
sio-nal,  or  police  officer;  as  witness  before  a  civil  court;  for  duty  with 
a  niachine-ffun  platoon  or  regimental  detachment;  on  duty  rehevmg 
flood  and  eartluiuake  sufferers;  sick  in  quarters  or  in  hospital  at  his 
post  or  elsewhere ;  or  in  quarantine  at  a  station  where  his  company 
is  on  duty;  or  as  Artillery  district  staff  officer  serving  at  a  post  where 
Coast  Artillery  companies  are  stationed,  but  performing  no  company 
dutv:  or  detached  from  his  organization  in  command  of  portion  of 
a  troop,  battery,  or  company? 

4,  What  application  dees  the  proviso  have  to  an  officer  in  the 
status  of  arrest,  or  undergoing  trial,  or  changing  station  from  one 
company  assignment  to  another,  or  awaiting  orders? 

The  legislation  here  presented  for  construction  is  the  latest  of  a 
long  series  of  attempts  to  regidate  the  evil  of  excessive  detached 
service  of  officers  and  the  first  attempt  at  statutory  regulation  of 
detached  service  within  the  military  establishment.  Its  proper  con- 
struction can,  it  is  thought,  be  reached  best  by  considering  previous 
attempts  at  departmental  regulation  and  the  long  line  of  official 
recommendations  on  the  subject,  in  the  light  of  which  it  has  to  be 
presumed  Congress  has  legislated. 

The  provisions  of  paragraphs  4,  5,  6,  and  7  of  the  x\rmy  Regula- 
tions of  1835  appear  to  be  the  first  attempt  at  departmental  regida- 
tion  of  this  evil.  In  effect  they  prohibited  the  detachment  of  officers 
for  duty  in  any  staff  department  or  on  any  detached  service  for  a 
longer  period  than  two  years,  but  providect  that  they  might  be  re- 
lieved earlier,  according  to  circumstances,  except  at  the  Military 
Academy  or  in  the  Ordnance  Department,  where  they  might  con- 
tinue detached  for  a  period  not  to  exceed  four  years.  It  was  pro- 
vided that  this  rule  should  not  apply  to  aides-de-camp,  nor  to  the 
commandant  of  the  Corps  of  Cadets  and  officers  of  engineers  detailed 
for  duty  at  the  Military  Academy. 

The  1857  regulations  dealt  with  detachments  from  company, 
regiment,  or  corps  for  duty  in  the  staff  departments  or  other  situ- 
ation,, and  provided  that  no  officer  (aides-de-camp  excepted)  should 
remain  so  detached  longer  than  four  years,  but  carried  the  further 
restriction  that  an  officer  of  the  mounted  corps  should  not  be  sepa- 
rated from  his  regiment  except  for  duty  connected  with  his  particu- 
lar arm.  Xo  change  was  made  in  the  succeeding  three  editions  of 
the  Army  Regulations  (1861,  1863,  and  1881),  nor  until  1885,  when 
the  regulation  respecting  detached  service  was  amended  by  G.  O. 
No.  85  of  that  year,  so  as  to  incorporate  the  provision  "  nor  shall 
any  officer  so  remain  detached  longer  than  four  years,  unless  assigned 
to  specicd  duty  hy  the  War  Department. 

Army  Regulations  of  1889  preserved  this  latter  provision,  but  the 
regulation  respecting  detached  service  was  subsequently  amended  by 
G.  O.  Xo.  52,  A.  G.  O..  1890,  so  as  to  require  that  when  an  officer 
not  assigned  to  special  duty  by  the  War  Department  shall  have 
been  away  for  four  years  his  detail  shall  cease  and  he  will  apply  in 
due  season  in  advanee  for  orders  to  rejain  his  proper  command. 
This  requirement  was  preserved  in  Army  Regidations  of  1895  and 
1901.  In  the  Army  Regulations  of  1904  the  regulation  took  on  a 
new  form,  with  some  of  the  verbiage  of  the  law  we  are  now  consider- 
ing, reading  in  relevant  portion  as  follows: 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.  57 

"40.^  *  *  *  When  at  any  time  an  officer  has  served  less  than 
two  of  the  preceding  six  years  with  his  corps  or  arm  of  the  service 
he  will  be  ordered  to  join  said  corps  or  arm  of  the  service,  unless  on 
detached  service  which,  under  the  law,  can  not  be  so  terminated. 
Exceptions  to  this  rule  will  not  be  made  except  in  case  of  emergencies 
or  in  time  of  war.'" 

The  above-quoted  paragraph  is  repeated  in  identical  words  in 
paragraph  40  of  the  Army  Eegulations  of  1908  and  1910.  Since 
January  i^3,  1007,  the  i-egiilation  has  been  supplemented  by  Cir- 
cular No.  3  of  the  War  Department,  issued  on  that  date,  providing 
as  follows: 

'•  Hereafter  an  officer  who  has  been  detached  from  his  proper  corps 
or  arm  of  the  service  for  a  period  approxinuiting  four  years,  included 
in  the  preceding  period  of  six  years,  will  be  deemed  ineligible  for 
further  detail  or  detached  duty  Avhich  would  normally'  prolong  his 
absence  from  his  proper  corps  or  arm  beyond  the  period  contem- 
plated by  paragraph  40  of  the  regulations,  and  no  captain  of  the  line 
of  the  Army  will  be  detached  from  duty  with  his  proper  arm, 
except  for  such  duty  as  legally  pertains  to  the  grade  of  captain, 
without  the  specific  approval  of  the  Secretary  of  War." 

Finally,  we  have  the  regulation  on  this  subject  restated  in 
"  Changes  of  Army  Regulations,  No.  8,"  dated  July  10,  1912,  amend- 
ing paragraph  40,  to  read  as  follows: 

''40.  In  time  of  peace  no  officer  below  the  grade  of  lieutenant 
colonel  shall  be  detached  nor  permitted  to  remain  detached  from 
that  branch  of  the  Army  in  which  he  holds  a  commission  or  from 
the  organization,  if  any,  to  which  he  shall  have  been  assigned  in  said 
branch  by  competent  authority  for  more  than  four  years  in  any 
period  of  six  years.  Temporary  duty  in  connection  with  rifie  or 
pistol  competitions,  with  courts-maritial  or  military  boards,  or  as 
umpire  at  maneuvers,  not  aggregating  more  than  two  months  in  any 
one  year,  performed  while  not  regularly  on  detached  service,  leaves 
of  absence  on  full  pay  taken  while  not  regularly  on  detached  service, 
and  duty  as  a  student  officer  at  a  service  school,  shall  not  be  deemed 
detached  service  within  the  meaning  of  this  paragraph,  but  upon 
completion  of  a  tour  of  duty  as  student  at  a  service  school  officers 
will  be  returned  to  their  respective  regiments,  organizations,  corps, 
or  departments,  and  will  not  be  detached  therefrom  for  two  years 
thereafter  unless  such  detachment  be  authorized  or  directed  by  the 
Secretary  of  War.  This  paragraph  shall  not  l>e  construed  so  as  to 
impose  restrictions  beyond  those  imposed  by  statute  upon  the  detail 
or  redetail  of  officers  to  the  staff  corps  or  departments  or  the  General 
Staff  Corps."    • 

This  latest  regulation  was  promulgated  while  the  legislation  we 
are  here  considering  Avas  pending  enactment  and  represented  the 
furthest  limit  the  department  deemed  it  practicable  to  go  in  limiting 
detached  service  of  officers. 

t  At  no  time  has  the  department  attained  even  a  fair  measure  of 
success  under  any  of  the  regulations  f(uoted  above  either  in  main- 
taining troops,  batteries,  and  companies  with  an  adequate  commis- 
sioned personnel,  or  in  distributing  throughout  the  entire  body  of 
officers  and  in  equal  proportions  the  privilege  of  detached  service. 
This  fact  is  fidly  established  by  the  records  of  the  department  and 
by  the  admission  of  superior  commanders  in  official  reports.     The 


58  DIGEST    OF    OPIXIOXS    OF    THE   JUDGE   ADVOCATE    GE^STEEAL. 

reason  is  not  far  to  seek.  ISIany  statutes  have  been  passed  during 
the  period  here  in  reference  authorizing  details  of  officers  to  duties 
more  or  less  remotely  connected  with  their  military  duties,  and,  in- 
cidentally, it  may  be  remarked,  more  appropriate  for  performance 
by  officers  of  company  than  of  field  grades.  The  department  has 
thus  had  to  deal  with  an  ever-increasing  demand  for  the  detail  of 
officers  away  from  their  duties  proper  and  with  many  requests 
emanating  from  sources  outside  the  service  for  the  detail  of  par- 
ticular officers.  The  importance  of  detached  dut}^  to  be  performed 
generally  required  that  these  places  should  be  filled  with  a  superior 
class  of  officers.  As  remarked  by  the  Chief  of  Staff,  in  a  memoran- 
dum submitted  to  the  Secretar}'^  of  War  November  26,  1901,  "  Nearly 
all  detached  service  calls  for  the  most  experienced  officers  and  even 
those  adjudged  the  most  capable."  Due  to  considerations  of  this 
character,  selection  for  these  duties,  as  well  as  for  numerous  mili- 
tary duties  for  which  it  is  necessary  to  detach  officers,  came  to  be 
regarded  as  a  reward  for  the  most  deserving  officers. 

It  is  not  strange  that  under  conditions  like  these  there  was  a 
failure  to  achieve  the  desired  results  under  any  of  the  regulations 
adopted,  nor  that  the  Chief  of  Staff  in  a  letter  to  the  President, 
dated  April  11,  1908,  should  have  remarked,  with  reference  to  the 
execution  given  to  paragraph  40,  Armj^  Regulations  of  1908,  and 
Circular  No.  3  of  the  "War  Department,  of  January  27,  1907,  cited, 
supiYi,  '••It  (detached  service)  is  a  most  difficult  question  to  deal 
with,  and  I  hardly  believe  there  is  any  way  of  preventing  a  viola- 
tion of  the  above  regulation  and  circular." 

The  evil  of  absenteeism  increased  from  year  to  3"ear  despite  the 
earnest  effort  of  the  department,  extending  over  quite  a  prolonged 
period,  to  regulate  and  control  it.  The  extent  of  the  evil  was  brought 
forcefully  to  the  attention  of  Congress  in  the  hearing  before  the 
Committee  on  ISIilitary  Atfairs  of  the  House  of  Representatives  held 
January  28,  1909,  the  committee  having  under  consideration  S.  2671, 
providing  for  extra  officers.  In  the  printed  report  of  that  hearing 
there  are  included  the  reports  of  all  the  regimental  commanders 
of  Cavalry.  Field  Artillery,  and  Infantr}',  and  of  the  Chief  of 
Coast  Artillery,  respecting  the  evil  of  absenteeism  of  officers  as 
conditions  stood  on  July  31,  1908.  The  most  prominent  complaint 
elicited  was  that  too  many  officers  were  absent  from  troops,  bat- 
teries, and  companies,  and  it  was  strongly  emphasized  that  serious 
detriment  to  the  discipline  of  the  men  and  the  efficiency  of  the 
service  resulted  therefrom,  as  the  following  extracts  from  said  re- 
ports show : 

Col.  E.  J.  McClernand.  First  Cavalry,  sa^'s: 

"1.  The  duties  of  the  captains  who  are  absent  (six  in  this  case) 
fall  to  younger  and  less  experienced  men  than  the  law  contemplates, 
to  the  detriment  of  discipline  and  instruction.  Such  absence  is  also 
a  frequent  source  of  discontent  on  the  part  of  the  enlisted  m^n. 

"  2.  The  decreased  strength  of  the  commissioned  personnel  present 
for  duty  has  resulted  in  the  frequent  change  of  troop  commanders 
to  meet  unforeseen  details  and  necessities.  This  interferes  with 
troop  administration  and  is  unfair  to  the  officer  and  enlisted  man." 
(P.  11.) 


DIGEST   OF   OPIXIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.  59 

Col.  J.  H.  Dorst,  Third  Cavalry,  sa3's: 

"  It  will  be  noticed  that  all  troo[)s  but  one  were  commanded  by 
lieutenants — 5  of  them  second  lieutenants — and  that  of  the  22  offi- 
cers present  16  were  lieutenants.  The  officers  are  habitually  insutli- 
cient  in  number  to  do  all  their  re(iuired  work  well.  Necessarily 
many  things  are  slurred.  Many,  delays,  omissions,  and  errors  are 
o\'erlooked  or  condoned  because  it  is  known  that  the  officers  have 
not  the  time  to  tri\e  the  matters  in  question  their  personal  attention 
without  neglecting  something  else,  and  can  n(jt  justly  be  held  respon- 
sible for  what  seem  to  be  neglects.  A  low  standard  inevitably  be- 
comes established  by  and  by,  and  is  accepted  as  the  correct  standard 
by  the  younger  officers."     (P.  43.) 

Col.  F.  K.  Ward,  Seventh  Cavalry,  says: 

"  It  is  impossible,  with  so  man}'  officers  absent,  to  put  the  regiment 
in  the  condition  it  should  be  as  regards  efficiency.  The  discipline 
and  instruction,  in  fact  everything  that  contributes  to  efficiency, 
is  unavoidably  ali'ected  injuriousl3\  Many  troops  have  but  one  offi- 
cei'  present,  and  one  is  not  enough  for  thorough  instruction.  Fre- 
quent changes  of  troop  commanders  are  unavoidable.  Much  of  the 
instruction  has  to  be  by  officers  temporarily  attached,  because  the 
one  officer  present  is  on  other  duty.  The  statement  can  not  be  made 
too  emphatic  that  discipline,  instruction,  contentment  of  the  enlisted 
men,  in  fact  everything  which  contributes  to  eliicienc}',  is  now 
injuriou.sly  affected  by  the  absentee  list."     (P.  47.) 

Col.  George  A.  Dodd,  Twelfth  Cavahy,  says: 

"  Some  of  the  eifects  of  absenteeism  and  frequent  changes  of  or- 
ganization conmianders  are: 

''  First.  A  spirit  of  discontent  on  the  part  of  enlisted  men  and  a 
dislike  on  their  part  of  being  commanded  by  officers  entirely  inex- 
perienced in  the  practical  performance  of  military  duties.  Each 
captain,  or  troop  commander,  if  he  is  with  his  troop  long  enough, 
should  have  a  system  of  his  own  so  far  as  the  internal  management 
of  his  troop  is  concerned — an  official  individuality  or  equation  which 
is  imparted  not  only  to  the  soldiers  but  to  officers  under  him.  It  is 
that  which  holds  an  organization  together,  im])arting  to  it  an  indi- 
vidual pride  which  is  essential  to  good  results.  The  numerous  and 
frequent  changes  of  troop  commanding  officers,  as  indicated  below, 
destroys  all  this,  thereby  weakening  discipline.  Old  soldiers  have 
been  known  to  openly  declare  on  being  dischai'ged  that  they  woidd 
reeulist  were  it  possible  to  know  who  they  were  to  serve  under." 
(P.  52.) 

Brig.  Gen.  Arthur  Murray,  Chief  of  Coast  Artillery,  says: 

"A  mortar  or  gun  battery  or  a  mine  field  absolutely  requires  a  cer- 
tain nuuiber  of  officers  for  its  proper  service.  These  officers  can  not 
be  dispensed  with  without  a  diop  in  efficiency.  Their  duties  can  not 
be  doubled  up  and  performed  by  a  less  number  of  indi\iduals,  no 
matter  how  proficient  the  latter  may  be.  Their  several  stations  are 
separated,  and  the  duties  pertaining  to  each  position  are  all  that  one 

man  can  attend  to  at  the  time. 

*  «  *  *  *  *  * 

"  Every  effort  has  been  nmde  to  decrease  the  number  of  officers  of 
Coast  Artillery  detached  from  companies.  Statf  positions  have 
been  doubled  up,  leaves  of  absence  have  been  cut  down  or  refused, 


60  DIGEST    OF    OPIXIOXS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

but  in  spite  of  these  efforts  tlie  excessive  shortage  remains  to-day  an 
active  source  of  harm,  sapping  the  efficiency  of  the  corps  and  the 
proper  service  of  the  coast  defenses  of  the  country."  (P.  62.) 
CoL  William  H.  C.  Bowen,  Twelfth  Infantry,  says: 
"Could  officers  (particularly  captains)  be  assigned  to  duty  with 
com2:>anies  with  an}"  probability  of  remaining  sufficiently  long  to  be- 
come thoroughly  identified  with  the  organization,  much  better  results 
would  be  obtained,  and  discipline,  esprit  de  corps,  and  zeal  would  not 
be  absolutely  impossible  as  it  is  at  present. 

"There  is  no  doubt  in  my  mind  but  that  a  large,  very  large,  per- 
centage of  desertions  in  the  Army  is  caused  by  the  constant  changing 
of  company  officers,  especially  company  commanders."  (P,  75.) 
Col.  R.  H.  E.  Loughborough,  Thirteenth  Infantry,  says: 
"  This  is  no  unusual  condition.  When  the  regiment  left  the  Phil- 
ippine Islands  in  September,  1907,  there  were  only  '20  officers  on 
duty  with  it.  .   - 

"  The  absence  of  so  many  officers  is  extremely  demoralizing  and 
necessitates  the  constant  change  of  officers  from  one  company  to 
another.  The  change  of  a  company  commander  is  bud  enough,  but 
when  officers  from  one  company  are  constantly  being  placed  in  com- 
mnad  of  companies  with  which  they  have  never  served,  the  effect  on 
both  the  officer  and  the  enlisted  men  is  to  cause  a  lack  of  interest,  each 
expecting  a  further  change  and  none  feeling  that  the  conditions  are 
permanent.  If  a  lieutenant  on  duty  with  a  company  Avere  to  succeed 
to  its  command  upon  the  departure  of  the  captain,  the  effect  would 
be  bad,  but  incomparable  with  the  demoralizing  effect  of  placing  in 
command  a  lieutenant  from  another  company  or  even  battalion  who 
knoAvs  nothing  of  the  company  or  the  policy  of  its  captain."  (P.  76.) 
Col.  C.  A.  Williams,  Twenty-first  Infnatry,  says: 
"Every  detail  for  courts,  boards,  detached  service  for  brief  pe- 
riods, officers  of  the  day  and  guard,  absence  on  leave,  sick,  etc.,  mate- 
rially interferes  with  that  even  conduct  of  affairs  which  is  contem- 
plated by  law  providing  three  officers  for  each  company,  which  law 
its  makers  believed  necessary  to  the  administration  of  aff'airs  of  the 
organizations  for  which  they  were  provided. 

"  The  recent  experience  in  the  Twenty-first  Infantry  amply  illus- 
trates and  demonstrates  the  soundness  of  the  views  here  advanced. 
Nine  companies  participated  in  the  march  from  P'ort  Logan,  Colo., 
to  the  maneuver  camp  at  Crow  Creek  Reservation.  During  this 
march  of  OAer  200  miles,  the  most  important  Avork  of  the  year,  not  a 
ca])tain  Avas  with  these  companies,  and  but  one  lieutenant  Avith  each." 

To  continue  these  quotations  would  serA'e  only  to  show  unanimity 
of  opinion  upon  the  part  of  regimental  commanders.  Collectively 
their  reports  shoAv  that  absenteeism  from  troops,  batteries,  and  com- 
panies was  primarily  in  vicAV  as  the  most  radical  evil  to  be  remedied, 
although  many  of  them  refer  to  embarrassments  incident  to  absence 
of  officers  of  field  grade.  To  the  same  effect  are  the  reports  of  depart- 
ment commanders,  through  Avhom  the  reports  of  regimental  com- 
manders Avere  forAvarded,  as  illustrated  by  the  folloAving  comments: 

Gen.  Brush  remarks : 

"Unless  more  officers  are  soon  furnished,  so  that  companies,  troops, 
and  batteries  shall  at  least  have  captains,  the  Army  must  deteriorate. 
The  lack  of  permanent,  experienced  organization  commanders  is  re- 


DIGEST   OF   OPINIONS    OF    THE    JUDGE   ADVOCATE    GENERAL.  61 

sponsible  for  most  of  the  desertions  in  the  Army  to-day.  One  or- 
ganization in  this  department  has  had  five  commanders  within  the 
year,  and  this  is  practically  a  sample  of  what  is  going  on  through- 
out the  service."     (P.  38.) 

Gen.  Barry  expressed  himself  in  the  following  language: 

"The  aim  of  a  captain  should  be  to  remain  with  his  company,  and 
the  aim  of  the  authorities  should  be  to  keep  him  there,  and  detach 
him  only  under  exceptional  circumstances  or  when  the  law  so  pro- 
vides. Many  of  the  duties  for  which  captains  are  detached  might 
well  be  performed  by  experienced  first  lieutenants.  The  unit  upon 
which  all  military  organizations  depends  is  the  company,  and  with 
good  companies  good  battalions,  regiments,  etc.,  necessarily  follow." 
(r.  38.) 

In  his  annual  report  for  the  year  1906  the  Secretary  of  War  used 
the  following  language: 

"  Over  82  per  cent  of  the  officers  on  detached  service  on  June  30, 
1906,  were  captains  or  lieutenants  of  the  line.  The  duties  upon  which 
detached  officers  are  engaged  are  all  necessary  and  useful  and  in  the 
main  are  of  a  military  character  and  calculated  to  exert  a  broadening 
influence  upon  the  officers  thus  engaged.  It  goes  without  saying, 
however,  that  the  details  of  company  officers  ought  not  to  be  so  many 
as  to  interfere  with  the  discipline  and  efficiency  of  their  commands. 
Some  commanding  generals  are  of  the  opinion  that  this  point  has 
been  reached  and  that  this  condition  of  affairs  contributes  to  a  rest- 
lessness and  dissatisfaction  on  the  part  of  enlisted  men,  which  is  not 
without  its  effect  in  the  matter  of  desertions."     (P.  28.) 

The  Chief  of  Staff,  in  a  memorandum  report  to  the  Assistant  Sec- 
retary of  War,  dated  December  2,  1909,  suggests  the  following  partial 
remedy : 

"  It  is  believed  that  the  policy  should  be  to  furnish  a  sufficient 
quota  of  officers  for  service  with  companies  before  filling  regimental 
and  battalion  staff  positions,  and  if  a  company  at  any  post  has  less 
than  two  officers  provided  for  duty  Avith  it  and  a  regimental  or  bat- 
talion staff  officer  is  available,  he  should  be  detailed  with  the  said 
company  pending  the  return  of  the  proper  quota  of  company  officers." 

In  a  prior  report  of  April  11,  1908,  rendered  direct  to  the  Presi- 
dent, the  Chief  of  Staff,  commenting  on  the  difficulties  encountered 
in  the  enforcement  of  regulations  respecting  detached  service  of 
officers,  expressed  the  opinion  that  there  was  no  certain  way  of  pre- 
venting a  violation  of  such  regulations,  and  suggested  somewhat 
tentatively  the  enactment  of  some  kind  of  a  law  which  Avould  de- 
prive an  officer  of  pay  whenever  detached  in  violation  thereof  in 
these  terms : 

"A  law  would  be  automatic  and  self-enforcing  *  *  *  Without 
a  practical  test  of  such  a  law  I  believe  it  would  be  impossible  to  de- 
termine whether  it  would  promote  the  best  interests  of  the  service 
or  not.  The  provisions  of  the  law  should  be  given  most  careful  study 
in  detail  or  injury  to  the  service  is  most  liable  to  result.  It  will 
certainly  result  in  embarrassment  and  inconvenience  at  times,  no 
matter  how  drawn.  If  the  President  thinks  such  a  law  would  be 
advisable,  this  study  can  be  given  Avith  a  view  to  introducing  it  in 
the  next  Congress." 

Under  date  of  April  13.  1908,  the  President  returned  this  report 
to  the  Chief  of  Staff  with  the  remark:  "I  agree  with  you  that  at 


G2  DIGEST    OF    OPINIOXS    OF    THE    JUDGE    ADVOCATE    GENEExlL. 

present  the  proposed  law  would  not  be  desirable,  as  in  a  number  of 
cases  its  operation  might  be  contrary  to  the  best  interests  of  the 
service."'  This  was  foUowed  by  directions  as  to  administrative  meas- 
ures which  might  be  adopted  to  make  more  certain  the  strict  en- 
forcement of  existing  regulations  limiting  detached  service. 

Finall3%  we  have  to  note  the  Senate  resolution  of  January  22,  1912, 
calling  for  the  names,  rank,  and  organization  of  all  officers  of  the 
line  of  the  Arm}!'  who  during  the  six  years  ending  July  31,  1911,  had 
not  served  two  years  in  the  organizations  in  which  they  were  respec- 
tively commissioned,  or  who  during  the  12  years  ending  on  the  same 
flay  had  not  served  4  yeare  in  said  organization,  with  the  nature  and 
duration  of  detached  service.  The  reply  of  the  deptirtment  thereto, 
dated  January  30,  1912,  clearly  reveals  that  under  the  rules  of  selec- 
tion that  had  prevailed  during  the  period  covered  by  the  report 
excessive  absenteeism  of  particular  officers  had  resulted,  many  hav- 
ing exceeded  the  limits  of  detached  service  specified  in  said  resolution. 

It  thus  clearly  appears  from  the  above  reports  and  from  others  of 
this  period  I  have  examined  that  at  the  time  the  legislation  we  are 
here  considering  was  pending  before  Congress  strong  service  opinion 
had  manifested  itself  in  an  unmistakable  and  emphatic  way  to  the 
effect  that  the  evil  of  absenteeism  of  troop,  battery,  and  company 
officers  had  greatly  impaired  the  efficiency  of  the  Army ;  that  exces- 
sive detached  service  of  particular  officers  under  the  rules  of  selection 
which  were  followed  had  resulted ;  that  this  evil  was  to  some  extent 
promoted  by  the  practice  of  filling  regimental  and  battalion  statf 
positions  at  the  expense  of  an  adequate  commissioned  personnel  for 
troops,  batteries,  and  companies,  and  that  the  opinion  of  the  Chief 
of  Staif  was  against  this  practice;  that  the  standard  fixed  by  service 
opinion  for  possible  attainment  was  at  least  two  officers  actually 
present  for  duty  w^th  each  troop,  battery,  and  company:  and  that 
under  administrative  measures  adopted  there  had  been  failure  to 
remedy  these  evils  and  generally  to  achieve  the  desired  results.  It  is 
also  apjiarent  that  all  these  facts  were  of  common  knowledge;  that 
most  of  them  had  been  lirought  directly  to  the  attention  of  the  mili- 
tary committees  of  Congress  in  recent  years,  and  were  well  within 
the  knowledge  of  Congress  at  the  time  the  legislation  here  under 
review  was  enacted. 

It  will  be  of  assistance  in  construing  the  legislation  here  in  refer- 
ence to  trace  V)riefly  the  history  of  its  enactment. 

The  Army  appropriation  bill  as  reported  to  the  House  by  the 
Committee  on  Military  Affairs  contained  no  provision  on  the  subject. 
While  the  bill  was  on  its  passage  in  the  House  the  following  amend- 
ment was  offered : 

^"Provided,  That  hereafter  no  pay  or  allowance  shall  be  paid  or 
allowed  to  any  officer  for  any  period  during  which  he  shall  have 
been  detached  for  duty  of  anv  kind  for  more  than  four  of  the  pre- 
ceding six  years  from  the  organization  in  which  he  is  commissioned, 
unless  such  continuous  detachment  from  such  organization  for  more 
than  four  vears  shall  ha^e  been  specifically  authorized  bv  law." 
(Cong,  Rec,  Feb.  9,  1912.  p.  1990.) 

The  amendment  was  passed  by  the  House  in  the  following  form : 

''That  no  money  appropriated  by  this  act  shall  be  paid  to  any 
officer  for  any  period  during  which  he  shall  have  been  detached  for 
any  duty  of  any  kind  for  more  than  four  of  the  preceding  six  years 


DIGEST    OF   OPTXIONS   OF    THE    JUDGE   ADVOCATE    GENERAL.  63 

from  the  organization  in  which  he  is  commissioned,  imless  such  con- 
tinuous detachment  from  such  organization  for  more  than  four  years 
sliall  have  been  specifically  authorized  by  law."  (See  Cong.  Rec, 
Feb.  9,  1912,  pp.  1991-1993.) 

The  bill  then  went  to  the  Senate  and  was  referred  to  the  Com- 
mittee on  Military  Affairs,  which,  in  lieu  of  the  detached-service 
provision  as  enacted  by  the  House,  reported  the  following: 

'•'•Provided^  That  hereafter  in  time  of  peace  no  officer  of  the  line 
shall  be  detached  or  permitted  to  remain  detached  from  his  regiment 
v.i'  corps  who  has  not  served  for  at  least  three  years  of  the  preceding 
period  of  six  5^ears  prior  to  such  detachment  with  the  regiment  or 
regiments  of  Cavalry,  Field  Artillery,  or  Infantry  or  with  the 
organizations  of  the  Coast  Artillery  Corps  to  which  he  shall  have 
been  assigned  by  the  War  Department;  but  this  shall  not  apply  to 
officers  detailed  in  the  Ordnance  DepTirtment  and  the  Bureau  of 
Insular  Affairs,  as  authorized  by  the  act  of  Congress  approved  June 
twenty-fifth,  nineteen  hundred  and  six,  and  March  second,  nineteen 
hundred  and  seven." 

The  Senate,  after  substituting  two  years  for  three  years  and  for  the 
reference  to  the  act  of  March  2,  1907,  a  reference  to  the  act  of  ^larch 
23,  1910,  accepted  the  substitute  of  the  Senate  Committee  on  Military 
Affairs,  and  also  adopted  the  following  provision : 

'■'•Provided^  That  no  money  appropriated  by  this  act  shall  be  paid 
to  any  officer  for  any  period  during  which  any  other  officer  by  his 
order  shall  have  been  detached  for  any  duty  of  any  kind  for  more 
than  four  of  the  preceding  six  years  from  the  organization  in  which 
he  is  commissioned,  unless  such  continuous  detachment  from  such 
organization  for  more  than  four  years  shall  have  been  specifically 
authorized  by  law." 

T^pon  the  disagreeing  vote  of  the  House  the  bill  went  to  conference, 
and  the  conferees  reported  the  detached  service  provision  in  the 
following  form: 

'-'■  Provided^  That  hereafter,  in  time  of  peace,  whenever  any  officer 
holding  a  permanent  commission  Avith  rank  below  that  of  lieutenant 
colonet  shall  not  have  been  actually  present  for  at  least  two  of  the 
preceding  six  years  in  that  branch  of  the  Army  in  which  he  shall 
hold  said  commission,  and  with  the  organization,  if  any,  to  which 
he  shall  have  been  assigned  by  competent  authority,  such  officer 
shall  not  be  detached  nor  permitted  to  remain  detached  from  said 
branch  or  from  said  organization;  and  all  pay  and  allowances 
shall  be  forfeited  by  any  superior  officer  for  any  period  during 
which,  by  his  order,  or  with  his  permission,  or  by  reason  of  his 
failure  or  neglect  to  issue  or  cause  to  be  issued  the  proper  order  or 
instructions  at  the  proper  time,  any  other  officer  shall  be  detached 
or  permitted  to  remain  detached  in  violation  of  any  of  the  terms 
of  this  proviso:  Provided  furtliei\  That  nothing  in  the  foregoing 
proviso  shall  be  held  to  apply  in  the  case  of  any  officer  for  such 
period  as  shall  be  actually  necessary  for  him,  after  having  been 
relieved  from  detached  service,  to  join  that  branch  in  which  he  shall 
hold  a  permanent  commission  and  the  organization,  if  any,  to  which 
he  shall  be  assigned  by  competent  authority,  nor  shall  it  be  held 
to  apply  in  the  case  of  any  officer  absent  temporarily  on  courts- 
martial  or  military  boards,  or  upon  leaves  of  absence  authorized  by 
existing  law:  And  provided  further^  That  hereafter  details  to  the 


64  DIGEST   OF    OPINIOXS   OF   THE    JUDGE   ADVOCATE   GENEEAL. 

Ordnance  Department  may  continue  to  be  made  as  authorized  by 
existing  law,  and.  in  the  discretion  of  the  President,  those  details, 
or  anv  of  them,  now  existing  to  the  Philippine  Constabulary  need 
not  be  terminated  nntil  the  first  day  of  January,  nineteen  hundred 
and  thirteen."     (Conference  report.  May  27,  1912.) 

The  conference  report  was  accepted  by  both  Houses,  but  the  bill 

was  vetoed  by  the  President.  o^-o1^  ^  ^  ^    ^i. 

The  new  Army  appropriation  bill  (H.  R.  2oo31).  reported  to  the 
House  by  the  Committee  on  Military  Aifairs  on  July  1,  1912,  con- 
tained the  same  provision  as  the  original  bill  passed  by  the  House. 

As  passed  by  the  Senate  on  August  14,  1912,  the  bill  carried  the 
following  provision :  o  ^,      ,■ 

^'■ProvidecL  That  hereafter  m  time  of  peace  no  otticer  o±  the  line 
shall  be  detached  nor  permitted  to  remain  detached  from  his  regi- 
ment or  cori^ts  who  has  not  served  for  at  least  two  years  of  the 
preceding  period  of  six  years  prior  to  such  detachment  with  the 
regiment*' or  regiments  of "  Cavalry,  Field  Artillery,  or  Infantry,  or 
with  the  organizations  of  the  Coast  Artillery  Corps  to  which  he 
shall  have  been  assigned  by  the  War  Department:  but  this  shall  not 
apply  to  officers  detailed  in  the  Ordnance  Department,  the  Bureau 
of  Insular  Affairs,  as  authorized  by  the  acts  of  Congress  approved 
June  twenty-fifth,  nineteen  hundred  and  six,  and  March  twenty- 
third,  nineteen  hundred  and  ten.  or  to  any  officer  on  duty  in  con- 
nection with  the  construction  of  the  Panama  Canal  until  the  same 
shall  have  been  formally  opened ;  and  in  the  discretion  of  the  Presi- 
dent, up  to  the  fu-st  of  January,  nineteen  hundred  and  fourteen, 
it  shall  not  apply  to  any  officer  on  duty  with  the  Philippine  Con- 
stabularv,  and  hereafter  no  officer  below  the  rank  of  major  shall 
be  detailed  as  chief  or  assistant  chief  of  the  Philippine  Constabulary, 
and  no  officer  shall  hereafter  be  assigned  to  duty  therewith  except  as 
specifically  provided  for  by  law :  Provided.  That  duty  as  a  student 
officer  at  a  service  school  within  the  continental  limits  of  the  T'^nited 
vStates  shall  not  be  construed  as  detached  service  within  the  meaning 
of  the  preceding  proviso." 

The  bill  then  went  to  conference,  and  was  reported  back  with  the 
proviso  substantially  amended,  the  concluding  provision  excepting 
student  officers  at  service  schools  being  omitted.  It  was  finally 
passed  by  both  Houses  in  the  form  in  which  it  appears  on  page  2 
of  this  opinion. 

A  careful  reading  of  this  legislation  in  its  various  developments 
as  shown  above  discloses  that  as  to  the  number  of  officers  affected  by 
its  provisions  the  legislation  as  enacted  imposes  a  less  rigorous  rule 
than  was  sought  to  be  imposed  in  any  of  the  earlier  forms  of  the  bill. 
The  original  proviso  applied  to  all  officers,  irrespective  of  grade  or 
branch,  but  its  application  was  subsequently  limited  to  officers  below 
the  grade  of  lieutenant  colonel,  and  finally  to  officers  of  the  line  with 
rank  below  the  grade  of  major.  But  in  respect  of  detached  services 
of  officers  remaining  within  its  provisions  the  increasingly  restrictive 
character  of  the  legislation  is  strikingly  evident.  In  the  form  in 
which  the  provision  originally  passed  the  House  it  covered  detach- 
ments from  the  arTn  in  which  an  officer  is  commissioned,  and  there- 
fore service  with  the  arm.  though  not  involving  service  w^ith  a  regi- 
ment, troop,  battery,  or  company  or  service  with  troops — such  as 
membership  on  the  Cavalry  or  Infantry  equipment  boards — would 


DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL.  65 

have  satisfied  its  requirements.  Under  the  terms  of  the  Senate  com- 
mittee's substitute  for  the  House  provision,  the  requirements  nar- 
rowed to  service  with  a  reghiient  of  Cavalry,  Field  Artillery,  or  In- 
fantry, or  with  an  organization — that  is,  companies — of  the  Coast 
Artillery,  and  service  with  an  arm  alone  would  no  longer  have  met 
the  requirements.  In  the  form  reported  by  the  conference  and  finally 
accepted  by  both  Houses  of  Congress,  but  vetoed  by  the  President,  the 
re(iuirement  was  for  service  with  the  branch  of  the  Army  in  which 
commissioned  and  with  the  organization.,  if  any,  to  which  the  officer 
may  have  been  assigned  by  competent  authority.  As  finally  enacted 
the  restriction  was  made  much  more  severe.  The  officer  must,  under 
the  law  as  enacted,  be  actucdlij  present  for  duty  with  a  troop,  battery, 
or  company,  for  the  prescribed  period,  and  if  he  stands  detaehtd 
therefrom  for  duty  of  any  kind  for  a  period  in  excess  of  that  author- 
ized the  penalty  of  the  law  is  incurred.  The  manner  in  which  the 
language  is  varied  in  other  specific  details  in  the  development  of  this 
legislation,  especially  with  reference  to  shifting  the  burden  of  loss 
of  pay  and  allowances  for  violation  of  the  terms  of  the  proviso  from 
the  officer  ordered  to  the  officer  ordering  or  responsible  for  the  issue 
of  the  proper  orders,  and  to  making  the  penalty  which,  in  the  first 
instance,  was  operative  only  on  money  appropriated  by  the  Army 
appropriation  bill  applicable  to  money  appropriated  for  pay  and 
allowances  by  any  act,  indicates  the  firm  purpose  of  Congress  to 
insure  the  execution  of  the  specific  terms  of  the  law.  The  insertion 
of  the  word  "  actually  "  before  the  words  "  present  for  duty  "  is  espe- 
cially significant  in  this  regard.  The  intent  that  the  legislation  here 
under  consideration  should  be  drastic  in  character  and  sure  in  its 
execution  could  hardly  have  been  more  emphatically  expressed. 

Premising  this  much  as  to  the  purpose  and  character  of  the  legisla- 
tion here  under  consideration,  I  will  proceed  to  answer  the  several 
questions  submitted  which  it  will  be  convenient  again  to  quote : 

"i.  Does  the  date  fi.red  in  the  joint  resokition.,  vis,  December  Jo, 
1912,  Tnarh  the  date  on  which  the  penalty  of  the  proviso  loill  com- 
mence to  apply,  so  that  all  changes  in  stations  of  officers  m^ist  be 
accomplished  on  or  before  that  date,  or  is  a  reasonable  time  given 
after  that  date  to  accomplish  such  change  f'' 

The  reasoning  of  the  Supreme  Court  of  Indiana,  in  the  case  of 
Pennsylvania  Company  v.  State,  decided  November  1,  1895,  appears 
to  be  decisive  of  this  question.  The  court  in  that  case  had  under  con- 
sideration an  act  requiring  railroad  companies  under  heavy  penalties 
to  place  in  each  passenger  depot  where  there  was  a  telegraph  office  a 
blackboard  and  to  note  thereon  at  least  20  minutes  before  the  time 
for  the  arrival  of  each  passenger  train,  the  fact  as  to  whether  such 
train  was  on  time,  and  if  late,  how  much.  The  act  was  approved 
March  9,  1889,  and,  under  a  provision  of  the  constitution  of  the  State, 
went  into  effect  60  days  thereafter,  or  on  May  10. 1889.  The  company 
contended,  in  effect,  that  it  was  entitled  to  a  reasonable  time  after 
the  latter  date  in  which  to  prepare  and  place  blackboards  upon  which 
to  note  the  time  of  arrival  of  trains.  The  court,  first  noting  the 
language  of  the  act  as  to  the  time  when  compliance  should  begin,  viz. 
"  immediately  after  the  taking  effect  of  this  act,"  answered  the  con- 
tention in  the  following  language: 

93668°— 17 5 


66  DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

"If  there  had  been  an  emergenc}'  chiuse  under  which  penalties 


which  necessarily  re(inired  time  for  preparation  to  do.  Probably  the 
situation  thus  stated  would  have  required  the  holding  that  the  word 
'  ininiediatelv '  was  not  employed  to  exclude  the  intervention  of  a 
reasonable  fime  within  which  to  prepare  and  place  the  boards  re- 
quired. So  we  may  say  Avith  reference  to  the  time  when  the  law  went 
into  force  (May  10,  1889),  if  that  were  the  first  notice  that  railway 
companies  were  required  to  take  of  the  law.  As  we  find  it,  the  law 
was  approved  March  9,  1889,  and  was  proclaimed  in  force  May  10, 
1889 — more  than  60  days,  and,  upon  the  allegations  of  the  answer, 
an  abundant  time  within  which  to  prepare  for  compliance  with  the 
law  and  for  tlie  avoidance  of  the  prescribed  penalties.  The  law  hav- 
ing passed  without  an  emergency  clause,  was  not  in  force  until  May 
10.  1889.  However,  that  its  passage  by  the  legislature  and  the  decla- 
ration of  the  constitution  that  it  should  be  in  force  from  its  distribu- 
tion and  the  proclamation  of  the  governor  were  notice  to  railway 
companies  sufficient  to  enable  them  to  prepare  for  its  requirements 
we  have  no  doubt." 

Had  the  joint  resolution  not  been  passed  the  proviso  here  under 
consideration  would  have  been  in  force  and  effect  in  its  entirety  from 
the  date  of  its  approval,  i.  e.,  from  August  24,  1912.  In  this  event 
the  holding  would  have  been  a  necessary  one  that  the  fact  that  the 
act  went  into  immediate  effect  upon  approval  did  not  operate  (using 
the  language  of  the  case  above  cited)  to  ""exclude  the  intervention  of 
a  reasonable  time  within  which  to  prepare  "  for  a  compliance  with 
the  law  and  for  the  avoidance  of  the  prescribed  penalties.  The  effect 
of  the  joint  resolution,  lioweA'er,  v^as  to  postpone  the  execution  of 
tliis  provision  for  a  period  of  nearly  four  months,  and,  I  think,  fol- 
lowing the  doctrine  of  the  above  case,  this  ])ostponement  must  be 
held  to  be  a  grant  of  what  the  Congress  regarded  as  the  time  neces- 
sary to  enable  the  department  to  prepare  for  compliance  with  the  law. 

I  therefore  answer  your  first  question  that  the  period  between  the 
approval  of  the  proviso  (Aug.  2-1,  1912),  and  the  date  of  its  taking 
effect  (Dec.  15,  1912),  is  one  of  preparation  for  meeting  the  require- 
ments of  the  statute;  that  the  changes  in  the  status  and  stations  of 
officers  necessary  to  meet  the  requirements  of  the  proviso  must  \ye 
ordered  so  as  to  become  effective  on  or  before  December  15,  1912; 
and  that  on  and  after  that  date  the  penalty  clause  of  the  proviso 
will  be  operative  against  any  officer  responsible  for  its  nonenforce- 
ment. 

2.  Is  the  language  of  the  proviso,  "  actually  present  for  duty  for  at- 
least  two  of  the  last  preceding  six  years  with  the  troop,  battery^  or 
company^  of  that  branch  of  the  Army  in  ichich  h-e  shall  hold  said 
commission,''''  to  he  interpreted  literally  as  Tneaning  that  an  offieer 
mtist  he  actually  present  on  duty  with  a  troop,  hatter y,  or  company; 
or  can  it  he  fairly  interpreted  as  nuaning  that  he  mvsf  he  present  and 
arailahle  for  duty  unth  a  troop,  hatter y,  or  company? 

This  second  inquiry  relates  to  the  initial  part  of  the  proviso,  which 
it  will  be  convenient  again  to  quote: 

'■'•  Provided,  That  hereafter  in  time  of  peace  whenever  any  officer 
holding  a  permanent  connnission  in  the  line  of  the  Armv  with  rank 


DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.  67 

below  that  of  major  shall  not  liave  been  actualhi  present  for  duty  for 
at  least  two  of  the  last  precedinof  six  years  irith  a  troop^  hatteri/^  or 
company  of  that  branch  of  the  Army  in  Avhich  he  shall  hold  said 
ccnimission,  such  oiiicer  shall  not  he  detached  nor  permitted  to  remain 
detached  from  such  troop,  hatter]/^  or  company  for  duly  of  any  kind ; 
and  all  pay  and  alloAvances  shall  be  forfeited  by  any  superior  for 
any  period  dnrin^  which,  by  his  order  or  his  i")ermission,  or  b}'  reason 
of  his  failure  or  neglect  to  issue  or  cause  to  be  issued  the  proper  order 
or  instructions  at  the  proper  time,  any  officer  sliall  bo  detached  or 
permitted  to  remain  detached  in  violation  of  any  of  the  terms  of  this 
proviso;     *     *     *." 

The  proper  construction  of  the  above-quoted  provision  turns  on 
the  meaning  to  be  assigned  to  the  italicized  words  "  troop,"  "  bat- 
tery,'' and  "company,"  and  the  italicized  phrases  "  actually  present 
for  duty  "  and  "  shall  ncit  be  detached  nor  permitted  to  rem;iin  de- 
tached *  *  *  for  duty  of  any  kind."  The  interpretation  to  be 
given  the  words  "troop,"  "battery,"  and  "company"  will  be  first 
considered. 

The  act  of  February  2,  1901  (31  Stat..  71:3),  fixes  the  strength  of 
each  arm  or  branch  of  the  service  and  then  pro\Tdes: 

"  Sec.  2.  That  each  regiment  of  CaA'alry  shall  consist  of  *  *  * 
one  band  and  twelve  troops  *  *  *  ;  each  Cavalry  band  shall  be 
organized  as  now  provided  by  law.  Each  troop  of  Cavalry  shall 
consist  of  one  captain,  one  first  lieutenant,  one  second  lieutenant,  one 
first  sergeant,  one  quartermaster  sergeant,  six  sergeants,  six  cor- 
porals, two  cooks,  two  farriers  and  blacksmiths,  one  saddler,  one 
wagoner,  two  trumpeters,  and  forty-three  privates     *     *     *." 

Substantially  similar  provisions  appear  in  section  10  of  the  same 
act.  which  prescribes  the  organization  of  an  Infantry  regiment  and 
company;  and  in  sections  7  and  8  of  the  act  of  January  2.">,  1907  (31 
Stat.,  Sfi2),  which  prescribes  the  organization  of  the  Field  Artillery 
regiment  and  battery:  and  in  sections  5  and  6  of  the  latter  act,  which 
prescribes  the  organization  of  the  Coast  Artillery  and  provides 
that— 

*•  Each  company  of  Coast  Artillery  shall  consist  of  one  captain, 
one  first  lieutenant,  one  second  lieutenant,  one  first  sergeant,  one 
quartermaster  sergeant,  two  cooks,  two  mechanics,  two  musicians, 
and  such  number  of  sergeants,  corporals,  and  privates  as  may  be 
fixed  by  the  President     *     *     *." 

It  thus  appears  from  the  legislation  quoted  that  Congress  has 
specifically  designated  the  composition  of  regiments,  distinguishing 
between  troops,  l)atteries,  and  companies,  on  the  one  hand,  and  bands 
on  the  other;  and  has  likewise  designated  the  composition  of  troops, 
batteries,  and  companies,  by  prescribing  the  numl)er  and  grades  of 
oHicers  and  enlisted  men  for  each.  In  so  doing  it  has,  I  think,  pro- 
riounced  a  fairly  specific  definition  of  what  a  troop,  battery,  or  com- 
pany is,  and  has  plainly  limited  the  number  of  them  that  normally 
compose  the  several  branches  of  the  service.  The  presumption  is 
strong  that  Congress  has  employed  these  terms  in  the  jn'oviso  here 
under  consideration  in  the  sense  they  are  defined  in  the  legislation 
above  quoted,  and  this  presumption  should  prevail,  imless  a  wider 
definition  is  suggested  by  the  context. 

In  your  third  inquiry  the  question  is  raised  whether  the  terms 
"  troop,"  "buttery,"  and  "company"  can  not  be  construed  to  cover 


68  DIGEST   OF   OPINIONS   OF    THE   JUDGE    ADVOCATE    GENERAL. 

machine-ffiin  platoons  and  regimental  detaGhments,  such  as  ritle 
teams;  and.  of  course,  the  same  question  arises  as  t«i  the  Army  service 
detachments  maintained  at  the  service  schools  and  at  the  ^lilitary 
Academv.  the  Cavalrv,  Field  Artillery,  and  Engineer  detachments 
maintained  at  the  latter  point,  and  the  recruit  and  prison  companies 
maintained  at  the  recruit  depots  and  the  United  States  Military 
Prison  and  its  branch. 

The  recruit  and  prison  companies  are  authorized  bv  the  acts  of 
June  12,  1906,  and  March  2,  1907  (34  Stat.,  242,  1100),  and  by  the 
act  of  March  3,  1909  (35  Stat.,  741).  Under  the  terms  of  these  acts 
these  companies  are  composed  of  enlisted  men  drawn  from  the  Army 
at  large,  and  are  given  the  noncommissioned  otiicei-s  allowed  by  law 
for  Infantry  companies.  While  their  organization  resembles  more 
closely  that  of  the  Infantry  company,  it  is  not  the  effect  of  the  lawl 
to  assign  them  to  the  Infantry  branch  of  the  Army.  In  practice^ 
these  companies  are  officered  indiscriminately  from  ofBcers  drawn^ 
from  the  four  branches  of  the  service.  It  will  scarcely  be  contended] 
by  anyone  that  service  of  an  officer  of  Cavalry,  Field  Artillery,  or, 
Coast  Artillery  with  a  recruit  or  prison  company  worild  be  service 
with  a  troop,  battery,  or  company  of  th^t  braneh  of  the  Army  in} 
■which  he  is  c&mmissioned,  and  I  think  this  must  be  held  to  be  true 
also  in  the  case  of  an  Infantry  officer  serving  with  one  of  these  com- 
panies; not  only  is  he  not  serving  with  an  organization  of  the 
branch  of  the  Army  in  which  he  is  commissioned,  but  the  range  of 
his  duties  while  so  serving  stands  limited  by  the  purpose  for  which 
these  companies  are  created  and  maintainecl.  viz,  recruit  instruction 
and  the  guarding  of  prisoners  with  the  incidental  company  adminis- 
tration. This  does  not  constitute  in  any  sense  tlie  equivalent  of  the 
training  and  experience  which  are  incident  to  actual  service  in  a 
corresponding  unit  of  his  branch,  and  which  it  is  the  primary  pur- 
pose of  the  statute  to  enforce.  The  same  observations  hold  in  re- 
spect of  service  of  an  officer  with  the  Cavalry,  Field  Artillery,  and 
Engineer  detachments  maintained  at  the  Military  Academy,  and  the 
Army  service  detachments  maintained  at  the  service  schools.  All 
these  detachments  are  constituted  by  detaching  men  from  the  Army 
at  large,  and  they  are  not  made  component  parts  of  any  branch  of 
the  service  by  provision  of  law.  I  do  not  understand  that  the  at- 
tempt is  made  in  any  of  them  to  carry  on  that  comprehensive  train- 
ing which  is  usual  in  corresponding  units  of  the  several  branches  of 
the  service  and  most  necessary  for  efficient  field  service. 

For  the  reasons  here  indicated  I  conclude  that  an  officer's  service 
with  recruit  and  prison  companies,  or  with  any  of  the  detachments 
above  named,  is  not  service  with  a  troop,  battery,  or  company  of  the 
branch  of  the  service  in  which  he  is  commissioned,  and  does  not, 
therefore,  meet  the  requirements  of  the  statute. 

\Ve  come  now  to  the  phrase  "•  actually  present  for  duty."  "  Present 
for  duty  •■  is  the  language  of  the  troop,  battery,  and  company  morn- 
ing report — language  which  conveys  to  every  line  officer  a  definite 
meaning.  Before  the  words  "  present  for  duty  "  we  find,  by  way  of 
emphasis,  the  word  "actually."  I  can  not  see  my  way  clear  to  treat 
the  insertion  of  this  word  as  without  purpose  and  meaning,  and  must 
conclude  that  by  the  nse  of  the  emphatic  word  "  actually  "  in  connec- 
tion with  the  definite  phrase  "  present  for  duty  "  Congress  intended 


DJfJKST   OF   OPINIONS  OF    THE    JUDOE   ADVOCATE   GENERAL.  G9 

to  make  clear  that  the  expression  should  be  construed  in  a  literal  and 
restricted  sense. 

In  tlje  construction  of  the  proviso  we  are  aided  at  this  point  Vjy 
keeping  in  mind  tlie  obvious  purpose  of  the  law  which,  in  effect,  is 
to  define  and  rej^ulate  the  service  relation  of  the  line  officers  of  com- 
pany grade  to  troops,  batteries,  and  companies,  with  a  view  to  in- 
surinp^  the  requisite  amount  of  service  with  each  of  these  units.  It 
will  be  readily  conceded,  I  think,  that  performance  of  duty  is  the 
object  of  the  presence  which  the  statute  commands,  and  is  the  single 
contemplation  of  the  phrase  "actually  present  for  duty,"  and,  fur- 
ther, that  any  presence  that  does  not  contemplate  as  its  primary 
purpose  and  result  the  performance  of  duty  as  the  duty  shall  nor- 
mally occur  is  a  constructive  rather  than  an  actual  presence  for  duty 
and  is  not  a  compliance  with  the  statute. 

The  conclusion  here  reached  indicates  very  plainly  the  answer 
respecting  the  status  of  regimental  staff*  officers ;  but  as  special  argu- 
ment was  made  in  their  behalf  in  one  of  the  memoranda  submitted 
to  me  for  consideration,  their  status  under  the  proviso  will  be  more 
fully  discussed. 

Attention  was  invited  in  said  memorandum  to  the  fact  that  regi- 
mental staff'  officers  remained  pre.sent  with  the  command,  though  they 
were  not  actually  present  with  a  troop,  battery,  or  company;  that 
they  are  on  duty  with  troops  and  perform  service  therewith:  and, 
further,  that  they  are  immediately  available  under  the  orders  of  the 
commander  of  the  regiment  to  rejoin  troops,  batteries,  or  companies, 
as  tlie  exigencies  of  the  service  require;  and  it  is  argued  that  in  being 
thus  present  witli  the  regiment  and  being  immediately  available 
under  the  orders  of  the  regimental  commander  for  duty  with  troops, 
batteries,  or  comj^anies  it  should  be  held  that  thev  are  actually  pres- 
ent for  duty  with  a  troop,  battery,  or  company  within  the  sense  of 
the  statute. 

Regimental  staff'  officers  are  appointed  from  the  captains  of  the 
regiment  by  the  regimental  commander  and  are  designated  not  as 
"company  officer,"  but  as  "adjutant,"  "quartermaster,"  and  "com- 
missary" (A.  R.,  248);  their  duties  as  prescribed  are  entirely  dif- 
ferent from  the  normal  duties  of  the  company  officer  (A.  R.,  251  et 
seq.) ;  their  tours  are  limited  to  four  years,  and  an  officer  is  ineligible 
for  a  second  tour  "  until  he  sliall  liave  served  two  years  as  a  rompdni/ 
officer"  (A.  R.,  249)  ;  they  are  not  borne  on  any  troop,  battery,  or 
company  roll,  report  of  return  "  for  duty,"  or  otherwise,  but  are 
returned  as  a  part  of  the  headquarters,  field,  and  staff.  The  appoint- 
ment of  a  regimental  staff'  officer,  as  a  rule,  in  and  of  itself  cancels 
his  af^signment  and  separates  him  from  his  company,  and  the  Regu- 
lations contemplate  that  he  shall  not  render  company  duty  except 
by  virtue  of  special  assignment  by  the  regimental  commander  (A.  R., 
255).  His  normal  duties  are  not,  therefore,  those  of  a  company  offi- 
cer, and  the  mere  fact  that  he  is  directly  and  exclusively  subject  to 
the  orders  of  his  regimental  commander  can  have  no  effect  upon  his 
relation  or  status  with  a  company  or  as  a  company  officer  until  the 
regimental  commander  gives  the  order  and  creates  the  relation  or 
status:  whereupon  the  staff  officer  becomes  a  company  officer  and 
stands  ready  to  perform,  and  in  the  natural  course  of  events  does 
perform  the  usual  and  normal  duties  of  a  company  officer.     The 


70  DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEKAL. 

regimental  staff  officer  lias  the  potential  status,  which  may  be  trans- 
lated into  the  actual  status;  but  in  this  regard  the  word  actual  is  the 
antithesis  of  the  word  potential.,  or,  legally  speaking,  of  the  word 
'•  constructive."  The  use  of  the  word  "  actually  ''  in  the  proviso  pre- 
cludes a  resort  to  the  suggested  construction  that  the  regimental 
staff  officer  can  be  held  to  be  present  for  duty  with  one  of  the  organi- 
zations named.  This  reasoning  applies  as  well  to  post  and  battalion 
staff'  officers  and  to  other  officers  withdrawn  by  regimental  and  post 
commanders  by  authority  of  law,  regulation,  and  customs  of  service 
from  performance  of  company  duties. 

But  the  construction  suggested  must  be  rejected,  I  think,  for  other 
reasons.  We  ha^e  already  seen  that  in  the  official  reports  on  ab- 
senteeism of  officers  of  company  grade  which  preceded  and  pre- 
sumably led  up  to  this  legislation  stress  was  laid  upon  the  objection- 
able practice  of  filling  regimental  and  battalion  staff  positions  by 
depleting  a  troop,  batter}',  or  company  of  its  officers.  To  adopt  the 
construction  suggested  would  be  to  deny  to  the  statute  remedial 
effect  as  to  this  evil.  Further,  under  the  construction  suggested,  an 
officer  by  alternating  tours  of  ordinary  detached  service  with  de- 
tails to  regimental,  battalion,  and  post  staff  positions  would  be  able 
to  avoid  compliance  with  what  I  conceive  to  be  the  plain  reqidrement 
of  the  statute  for  two  years'  actual  presence  for  duty  with  a  troop, 
battery,  or  company  out  of  each  six-year  period,  and  thus  remain 
continuously  absent  from  duty  with  such  organizations  during  his 
service  in  company  grades.  It  can  not  reasonably  be  assumed  that 
Congress  intended  to  permit  this.  , 

From  these  considerations  I  conclude  that  in  determining  when 
officers  who  have  been  withdrawn  from  the  performance  of  normal 
duty  with  a  troop,  battery,  or  company,  including  those  so  with- 
drawn by  the  orders  of  their  immediate  regimental  or  post  command- 
ers, may  be  treated  as  again  "actually  present  for  duty"  with  a 
troop,  battery,  or  company,  the  true  rule  is  that  when  such  an  officer 
shall  resume,  pursuant  to  competent  orders,  such  an  actual  relation 
to  a  company  as  will  make  him  available,  without  further  orders,  \o 
perform  the  usual  duties  of  his  grade  with  respect  to  said  company, 
with  the  primary  purpose  of  performing  them,  and  therefore  stands 
able  and  ready  to  perform  thom  as  they  arise  in  the  course  of  mili- 
tary administration,  he  is  "  actually  present  for  duty  "  with  a  troop, 
battery,  or  company  within  the  meaning  of  the  statute ;  and  that 
anything  short  of  this  would  be  only  a  constructive  presence,  and 
not  a  compliance  with  the  proviso.  If  an  officer  is  not  thus  present 
for  duty  with  a  troop,  battery,  or  company,  then  he  is  not  actually 
piesent  vrithin  the  terms  or  intendment  of"  the  proviso,  if  its  words 
are  not  to  be  forced  out  of  their  evident  meaning.  I  may  add  that  I 
find  nothing  in  the  law  which  prevents  the  assignment  of  additional 
duties  to  an  officer  of  company  grade,  provided  it  leaves  him  in  the 
duty  status  to  his  organization  as  here  defined. 

In  the  construction  of  the  phrase  "  shall  not  be  detached  nor  per- 
mitted to  remain  detached  *  -  *  for  dutv  of  anv  kind"  the 
qualifying  words  "of  any  kind"  must  be  held,  I  think,  to  bring 
within  the  purview  of  the  phrase  all  descriptions  of  dutv  for  which 
it  IS  customary  to  detach  officers  irrespective  of  its  character  or 
duration. 


DIGEST    OF   OPTNIONS   OF    THE    JUDCE    ADVOCATE    GENERAL.  71 

The  suggestion  has  been  made  to  me  that  it  would  be  competent 
to  read  into  the  proviso  an  exception  as  to  any  detached  duty  which, 
under  the  customs  of  the  service  or  the  usual  practice  of  military 
administration,  would  not  require  a  formal  order  of  detachment 
from  a  troop,  battery,  or  company,  such  as  absence  undergoino-  exam- 
ination for  promotion,  on  duty  as  member  of  boards,  courts,  or  com- 
missions, or  on  minor  duties  directed  to  be  performed  by  post  or 
regimental  commanders,  such  as  map  making,  etc.  In  construing  the 
phrase  "actually  present  for  duty"  I  have  not  been  able  to  regard 
the  kind  of  order  which  creates  or  destroys  the  duty  status  or  the 
grade  of  authority  that  issues  such  orders  as  a  material  fact.  Neither 
do  T  think  it  is  material  in  determining  whether  any  kind  of  ••  de- 
tachment" comes  within  the  terms  of  the  proviso.  The  law  regards 
substance,  not  form.  The  mere  fact  that  a  formal  order  is  not  re- 
quired or  is  not  issued  or  does  not  denominate  such  duty  as  detached 
duty,  or  does  not  in  terms  order  a  detachment  of  any  kind,  can  not 
conclude  the  facts  in  the  case  or  serve  to  qualify  the  force  of  the 
words  of  the  proviso  "duty  of  any  kind";  nor  can  I  see  how,  under 
the  terms  of  the  statute,  the  duration  of  the  duty,  whether  transitory 
or  temporary  or  for  the  longer  and  usually  more  or  less  definite 
periods,  can  serve  to  extinguish  its  character  as  "  duty  of  any  kind." 
AH  absences  of  an  officer  from  his  organization  for  duty  of  any  kind 
are  within  the  terms  of  the  proviso. 

In  the  light  of  what  is  stated  above  I  answer  your  second  inquiry 
as  follows :  The  use  of  the  word  "  actually  "  in  connection  with  the 
phrase  "present  for  duty"  requires  that  the  phrase  should  be  con- 
strued literally— that  is,  that  the  officer  should  be  present  on  duty 
with  one  of  the  organizations  ])rescribed,  in  the  sense  that  he  is  in  'a 
regular  and  normal  duty  status  with  respect  thereto,  although  it  may 
at  times  be  impracticable  for  him  actually  to  perform  every  duty 
normally  pertaining  to  the  status — and,  therefore,  as  excluding  an 
officer  who,  although  physically  present  at  the  post  or  station  where 
his  troop,  battery,  or  company  is  serving,  is  separated  from  duty 
therewith  by  an  order  assigning  him  to  other  duties,  notwithstand- 
ing he  may  be  available  for  such  duty  in  the  sense  that  an  order  from 
his  immediate  commander  would  restore  him  to  su.ch  duty. 

Applying  the  conclusions  I  have  reached  to  your  third  and  fourth 
inquiries,  I  answer  as  follows: 

{a)  That  an  officer  of  company  gi-ade  under  compliance  with 
orders  to  perform  any  of  the  descriptions  of  duty  mentioned  in  said 
inquiries  is  not  to  be  considered  as  actually  present  for  duty  with  a 
troop,  battery,  or  company;  provided,  always,  that  the  order  assign- 
ing him  to  such  duties  operates  to  relieve  him  froili  the  performance 
of  duty  with  his  proper  organization ;  excepting  the  officer  who  com- 
mands a  detached  portion  of  his  troop,  battery,  or  company,  who 
must  under  those  conditions  be  held,  I  tliink,  to  be  actually  present 
for  duty  with  his  organization. 

{h)  That  an  officer  of  company  grade  who  is  sick  in  quarters,  or  in 
hospital  at  his  post  or  elsewhere,  or  in  quarantine  at  the  station  where 
his  organization  is  on  duty  or  elsewhere,  or  in  compliance  with  sum- 
mons from  a  ci^il  or  military  court,  or  in  arrest,  or  undergoing  trial, 
or  traveling  in  compliance  with  orders  to  change  station  from  one 
company  assignment  to  another,  or  absent  Avith  leave,  though  not 
'■  actually  present  for  duty  "  with  his  organization,  is  not  to  be  con- 


72  DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

sidered  as  detached  from  his  organization  ''for  duty  of  any  kind" 
in  such  sense  as  to  bring  into  operation  the  penalty  clause  of  the 
proviso. 

(a)  The  status  of  "'  awaiting  orders  "  is  an  exceptional  one  in  our 
service,  and  the  attendant  circumstances  in  each  case  must  be  relied 
upon  to  determine  whether  the  placing  of  the  particular  officer  in 
that  status  may  or  may  not  bring  into  operation  the  penalty  clause 
of  the  proviso. 

As  a  matter  of  administration  I  have  to  advise  you  further  that 
the  effect  of  the  proviso  is  to  require  that  an  accounting  shall  be 
opened  up  with  all  line  officers  of  company  grade  under  the  two 
headings,  viz,  '"actually  present  for  duty  with  a  troop,  battery,  or 
company,"  and  "  detached  from  a  troop,  battery,  or  company  for 
duty  of  any  kind."  The  first  account  will  reveal  the  officer's  eligi- 
bility for  detached  service;  the  second  w^ill  reveal  the  field  applica- 
tion of  the  penalty  clause  of  the  statute.  The  accounting  will  also 
reveal  a  third  status  of  officers  of  company  grade  in  which  they  are 
neither  "actually  present  for  duty"  with  a  troop,  battery,  or  com- 
pany, nor  detached  therefrom  "  for  duty  of  any  kind."  Such  absences 
from  duty  with  a  company  will  prevent  the  officers  from  accumu- 
lating eligibility  for  detached  service,  but  will  not  furnish  any  occa- 
sion for  the  application  of  the  penalty  clause  of  the  proviso. 

In  answering  as  above  I  have  not  been  unmindful  of  the  incon- 
veniences which  will  flow  from  enforcing  the  proviso  in  the  sense  I 
have  construed  it,  nor  of  the  extent  to  which  the  normal  execution 
of  other  laws  relating  to  the  Military  Establishment  may  be  ob- 
structed thereb3^  The  inconveniences  are  of  a  sufficiently  serious 
character  to  justify,  under  accepted  canons  of  construction,  the  most 
careful  scrutiny  of  the  proviso  for  the  purpose  of  ascertaining 
whether  there  is  not  some  other  construction,  permissible  under  its 
letter  and  spirit,  by  which  these  inconveniences  may  be  avoided. 
But  whenever  I  have  attempted  in  this  way  to  read  into  the  proviso 
an  exception  of  any  duty  the  principle  involved  Avould  have  required 
the  inclusion  of  a  large  class  of  duties  which  would  result  in  de- 
feating to  a  considerable  extent  its  obvious  purpose.  However,  the 
most  careful  scrutiny  of  the  proviso  and  study  of  the  service  condi- 
tions to  which  it  must  apply  convince  me  that  there  are  no  insuper- 
able obstacles  to  administering  it  according  to  the  plain  and  obvious 
import  of  its  words;  that  we  have  to  deal  with  nothing  more  serious 
than  inconveniences,  and  perhaps  some  increase  in  the  expense  of 
maintaining  the  Army  incident  to  the  fact  that  under  the  terms  of 
law  the  number  of  officers  eligible  for  detachment  for  duty  is  so  re- 
duced as  to  necessitate,  in  all  probability,  numerous  details  for  less 
than  the  maximum  period  prescribed  or  authorized  by  law  and  regu- 
lations. But  T  do  not  think  that  the  obvious  purpose  in  view  in  the 
enactment  of  this  legislation  should  be  restricted  or  hampered  by 
giving  controlling  effect  to  inconveniences  which  are  incident  to 
literal  construction  and  strict  enforcement.  In  the  light  of  the  his- 
tory of  this  legislation,  and  considering  the  unequivocal  and  emphatic 
language  which  Congress  has  employed,  I  am  compelled  to  concliule 
that  the  inconveniences  referred  to  were  well  within  the  contempla- 
tion of  Congress  and  the  intent  was  deliberate  to  face  the  possibility 
of  their  incurrence  with  whatever  additional  expense  was  incident 


DIGEST   OF   OPINIONS   OF    THE    JUDGE    ADVOCATE   GENERAL.  73 

thereto,  in  order  to  avoid  what  was  conceived  to  be  greater  incon- 
veniences with  resulting  greater  detriment  to  the  service  incident  to 
the  continuance  of  a  system  under  which  officers  may  pass  througli 
the  company  grade  wdth  insufficient  service  with  their  organizations. 

E.  H.  Crowdeu, 
Judge  Advocate  General. 

[Fourth  indorsement.] 

War  DEPART:\rENT, 
Judge  Advocate  Genekai/s  Office, 

October  U,  1912. 
To  the  Chief  of  Staff. 

1.  In  the  foregoing  letter,  dated  September  4,  1912,  Capt.  Mark  L. 
Ireland,  Coast  Artillery  Corps,  after  referring  to  the  recent  legisla- 
tion respecting  detached  service,  states,  inte7'  alia^  that  he  was  detailed 
for  duty  in  the  Ordnance  Department  from  July  1,  1906,  to  Octo- 
ber 5,  1909 ;  that  on  October  9,  1909,  he  complied  with  paragTaph  13, 
S.  O.  No.  196,  War  Department,  1909,  directing  him  to  report  to  the 
commanding  officer  of  the  Artillery  District  of  the  Columbia,  for  staff 
duty;  that  from  about  February  10  to  September  2,  1910,  he  was  at- 
tached to  the  One  hundred  and  sixtieth  C.^ompany,  Coast  Artillery 
Corps,  under  orders  from  the  Artillery  district  commander;  that  he 
performed  duty  with  the  One  hundred  and  sixtieth  Company  during 
the  entire  period  of  his  attachment  thereto,  except  from  July  25  to 
August  24,  1910,  during  which  period  he  was  detached  for  duty  as  an 
umpire  at  the  camp  of  instruction  at  American  Lake.  Wash.;  that 
he  was  in  command  of  said  company  from  March  19  to  April  26, 
1910;  that  he  is  at  present  on  duty  as  a  student  officer  at  the  Coast 
Artillery  School,  Fort  Monroe,  Va. ;  and  that  if  his  "  Ordnance  serv- 
ice is  not  cou.nted  and  credit  is  given  for  the  company  duty  per- 
formed with  the  One  hundred  and  sixtieth  Company,  (\)ast  Artillery 
Corps,"  his  status  is  such  as  to  permit  him  to  complete  the  advanced 
course  in  the  Coast  Artillery  School. 

2.  The  legislation  referred  to  above  is  found  in  the  Army  appro- 
priation act  of  August  24,  1912  (37  Stat.,  571),  as  amended  by  a 
joint  resolution  of  August  24,  1912  (37  Stat.,  645),  and,  in  so  far  as 
material  to  the  present  inquiry,  reads  as  follows: 

(1)  '■'Provided^  That  on  and  after  December  fifteenth,  nineteen 
hundred  and  twelve,  in  time  of  peace  whenever  any  officer  holding  a 
permanent  commission  in  the  line  of  the  Army  with  rank  below  that 
of  major  shall  not  have  been  actually  present  for  duty  for  at  least 
tAvo  of  the  last  preceding  six  years  with  a  troo]5,  battery,  or  company 
of  that  branch  of  the  Army  in  which  he  shall  hold  said  commission 
such  officer  shall  not  be  detached  nor  permitted  to  remain  detached 
from  such  troop,  battery,  or  company  for  duty  of  any  kind ; 

(2)  "  and  all  pay  and  allowances  shall  be  forfeited  by  any  superior 
for  any  period  during  which,  by  his  order,  or  his  permission,  or  by 
reason  of  his  failure  or  neglect  to  issue  or  cause  to  be  issued  the 
proper  order  or  instnictions  at  the  proper  time,  any  officer  shall  be 
detached  or  permitted  to  remain  detached  in  violation  of  any  of  the 
terms  of  this  proviso ; 

(3)  "but  nothing  in  this  proviso  shall  be  held  to  apply  in  the  case 
of  any  officer  for  such  period  as  shall  be  actually  necessary  for  him, 


74  DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

iifter  having  been  relieved  from  detaclied  service,  to  join  the  troop, 
battery,  or  company  to  which  he  shall  belong  in  that  bran'ch  in  whicli 
he  shall  hold  a  ])eririanent  commission; 

(4)  "nor  shall  anything  in  this  proviso  be  held  to  apply  to  the 
detachment  or  detail  of  officers  for  dnty  in  the  Judge  Advocate  Gen- 
ei'aTs  Department  or  in  the  Ordnance  Dei)artment,  or  in  connection 
Avith  tlie  construction  of  the  Panama  Canal  until  after  such  canal 
shall  have  been  formally  opened,  or  in  the  Philippine  Constabulai-y 
until  the  first  day  of  January,  nineteen  hundred  and  fourteen,  or  to 
any  officer  detailed  or  who  may  be  hereafter  detailed  for  aviation 

duty-" 

8.  Capt,  Ireland's  letter  raises  two  questions,  which  may  be  stated 

as  follows: 

First.  In  view  of  the  detached-service  provision  of  the  act  of  Au- 
gust 2-1:,  1912,  does  a  captain  or  lieutenant  of  the  line  by  serving  under 
detail  in  the  Ordnance  Department  accumulate  ineligibility  for  de- 
tached service  in  general? 

Second.  Is  a  cai)tain  or  lieutenant  of  the  line  who,  under  an  order 
attaching  him  to  a  troop,  battery,  or  company  of  the  branch  in  which 
he  is  commissioned,  actually  serves  with  such  organization  "  actually 
present  for  duty  *  *  *  with  a  troop,  battery,  or  company" 
Avithin  the  meaning  of  the  detached-service  proA'ision  of  the  act  of 
August  24,  1912  'i    ^ 

4.  In  connection  with  the  first  question  raised  by  Capt.  Ireland, 
he  suggests  that  while  one  evident  purpose  of  the  clause  "  nor  shall 
anything  in  this  proviso  be  held  to  apply  to  the  detachment  or 
detail  of  officers  for  duty  *  *  *  in  the  Ordnance  Depart- 
ment *  *  *  "  is  to  avoid  hampering  the  department  in  securing 
the  services  of  officers  for  detail  therein,  the  language  used  has  a 
broader  meaning  and  requires  that  the  clause  be  construed  so  as  to 
prevent  service  under  detail  in  the  Ordnance  Department  from 
rendering  an  officer  ineligible  for  detached  service  in  general. 

5.  As  I  construe  the  statutory  provision  quoted  in  paragraph  2 
hereof,  the  first  clause  prescribes  in  sweeping  terms  that  no  captain 
or  lieutenant  of  the  line  shall  be  detached  or  permitted  to  renuiin 
detached  for  duty  of  any  kind  from  a  troop,  battery,  or  company  of 
the  branch  in  which  he  is  commissioned  unless  he  shall  have  been 
actually  present  for  duty  with  such  troop,  battery,  or  company  for 
at  least  two  of  the  last  preceding  six  years;  and  the  second  clause 
prescribes  a  penalty  to  be  suffered  by  any  superior  who  directs  the 
detachment  of  an  officer  or  ])ermits  him  to  remain  detached  fi'om  a 
troop,  battery,  or  company  in  violation  of  the'  rule  laid  down  in  the 
first  clause;  while  the  third  and  fourth  clauses  provide  that  neither 
the  rule  which  forbids  the  detachment  of  an  officer  or  his  remaining 
detached  nor  the  rule  which  prescribes  a  penalty  shall  be  operative 
udien  the  reason  for  which  the  detachment  is  ordered  or  continued 
is  for  the  purpose  of  enal)ling  an  officer  relieved  from  detached 
service  to  join  a  troop,  battery,  or  company,  or  for  the  purpose  of 
employing  an  officer  in  the  manner  specified  in  the  fourth  clau.se. 
This  construction  gives  full  force  and  effect  to  the  causes  "but  noth- 
ing in  this  proviso  shall  be  held  to  ap])ly  to  *  *  * ''  and  "  nor 
shall  anything  in  this  proviso  be  held  to  apply  to  *  *  *";  for 
thus  construed  the  i^rovision  permits  an  officer  to  remain  detached 
from  "  a  troop,  battery,  or  company "  while  en  route  from  a  de- 


DIGEST   OF   OPIXIOXS   OF    THE    JUDGE    ADVOCATE   GENERAL.  75 

tached-servioe  station  to  the  station  of  his  organization  or  while 
detailed  for  duty  in  the  Ordnance  Department  or  for  any  other  duty 
specified  in  the  fourth  clause.  The  l)h)ttinw  out  of  the  provision 
when  the  assignment  of  an  officer  to  anv  tkitv  described  in  the  third 
or  fourth  clavise  or  his  continuation  on  such  duty  is  in  question  meets 
every  requirement  of  tlie  language  employed  in  those  clauses.  On  the 
other  hand,  to  hold  that  the  third  and  fourth  clauses  htive  the  effect 
of  changing  constructively  the  character  of  tlie  duty  therein  men- 
tioned so  that  such  duty  may  be  counted  as  duty  "  wii:h  a  troop,  bat- 
tery, or  company,-'  or  to  hold  that  those  clauses  warrant  disregarding 
or  treating  as  nonexistent  any  time  devoted  to  the  duties  described 
therein,  to  the  end  that  any  period  of  troop,  battery,  or  company 
service  not  within  the  last  preceding  six  years  may  be  counted  in 
determining  general  eligibility  for  detached  service,  would  be  to 
read  into  the  clauses  a  meaning  that  the  language  em})loyed  does 
not  import,  and  would  be  inconsistent  with  the  requirement  of  the 
first  clause,  which  makes  actual  presence  for  duty  "  with  a  troop, 
battery,  or  company  ■'  for  a  specified  portion  of  the  last  preceding  six 
3'ears  the  test  of  general  eligibility  for  detached  service. 

6.  For  the  reasons  stated,  I  am  of  the  opinion  that  a  captain  or 
lieutenant  of  the  line  who  serves  under  detail  in  the  Ordnance  De- 
partment thereby  accumulates  ineligibility  for  detached  service  in 
general;  that  in  determining  Capt.  Ireland's  eligibility  to  remain  on 
fluty  as  a  student  officer  at  the  Coast  Artillery  School  on  and  after 
December  15,  1912,  and  therefore  away  from  a  company  of  the  Coast 
Artillery  Corps  for  duty  not  of  the  kind  specified  in  the  third  and 
fourth  clauses  of  the  detached-service  provision  of  the  act  of  August 
21,  1912,  the  period  of  his  service  in  the  Ordnance  Department  within 
the  last  preceding  six  years  must  be  taken  into  account,  and  that 
such  service  may  not  be  treated  as  service  with  a  company  of  the 
branch  in  which  he  is  commissioned. 

7.  With  reference  to  the  second  question  raised  by  Capt.  Ireland 
the  following  extract  from- an  earlier  opinion  in  which  this  office 
discussed  at  length  the  detached-service  provision  here  under  con- 
sideration is  in  point,  viz  : 

u  >;=  *  *  jj-j^  determining  when  officers  who  have  been  withdrav/n 
from  the  performance  of  normal  duty  with  a  troop,  battery,  or  com- 
pany, including  those  so  withdrawn  by  the  orders  of  their  immediate 
regimental  or  post  commanders,  may  be  treated  as  again  'actually 
present  for  duty '  with  a  troop,  battery,  or  company,  the  true  rule  is 
that  when  such  an  officer  shall  resume,  pursuant  to  competent  orders, 
such  an  actual  relation  to  a  company  as  will  make  him  available  with- 
out further  orders  to  perform  the  usual  duties  of  his  grade  with 
lespect  to  said  company,  with  the  primary  purpose  of  performing 
them,  and  therefore  stands  able  and  ready  to  perform  them  as  tliey 
arise  in  the  course  of  military  administration,  he  is  '  actually  present 
for  duty '  with  a  troop,  battery,  or  company  within  the  meaning  of 
the  statute:  and  that  anything  short  of  this  would  be  onlv  a  con- 
structive  presence  and  not  a  compliance  with  the  proviso.  If  an 
officer  is  not  thus  present  for  duty  with  a  troop,  battery,  or  company 
then  he  is  not  actually  present  within  the  terms  or  intendment  of 
the  proviso  if  its  words  are  not  to  be  forced  out  of  their  evident 
meaning.    I  may  add  that  I  find  nothing  in  the  law  which  prevents 


70  DIGEST   OP  OPINIONS  OF    THE   JUDGE   ADVOCATE   GENEEAL. 

the  assi*^nment  of  additional  duties  to  an  officer  of  company  grade 
provided  it  leaves  hini  in  the  duty  status  to  his  organization  as  here 
defined."     (C-124,  Sept.  16,  1912.) 

8.  In  applying  the  rule  stated  in  the  preceding  paragraph  it 
appears  to  me  to  be  immaterial  whether  an  officer  is  "  assigned  "  to 
the  troop,  battery,  or  company  with  which  he  may  be  serving  or 
"  attached  "  thereto,  provided  the  officer  actually  occupies  the  regular 
and  normal  duty  status  of  his  grade  with  respect  to  the  organization. 
But  in  holding'^that  an  order  of  attachment  to  a  company  followed 
bv  the  normal  performance  of  duty  therewith  is  the  equivalent  of  a 
formal  assignment  to  a  vacancy  in  said  company,  I  do  not  mean  to 
be  understood  as  holding  that  by  attachment  of  an  indefinite  number 
of  officers  of  company  grade  to  a  company,  with  division  of  the 
duties  among  them,  the  requirements  of  the  law^  are  met.  The  com- 
j)lement  of  officers  for  each  troop,  battery,  and  company  has  been 
fixed  by  statute.  See  sections  2  and  10,  act  of  Februarv  2,  1901 
(31  Stat.,  748  and  750),  and  sections  6  and  8,  act  of  January  25,  1907 
(34  Stat.,  862).  In  the  execution  of  the  law  this  statutory  comple- 
ment may  not  be  exceeded,  except  possibly  under  emergent  or  unusual 
conditions  of  the  service  calling  for  a  commissioned  personnel  be- 
yond the  statutory  complement ;  but  to  increase  the  number  of  officers 
"with  a  company  beyond  the  statutory  complement  for  a  company  for 
the  primary  purpose  of  giving  to  the  additional  officers  a  company 
duty  status  would,  in  my  opinion,  clearly  be  an  evasion  of  the 
statute. 

9.  The  papers  in  reference  do  not  present  sufficient  facts  to  justify 
me  in  expressing  an  opinion  as  to  whether  or  not  Capt.  Ireland  is 
entitled  to  credit  as  having  been  actually  present  for  duty  with  a 
company,  within  the  meaning  of  the  detached-service  provision, 
during  the  period  he  was  attached  to  and  performing  duty  in  the 
One  hundred  and  sixtieth  Company,  but  the  rule  stated  in  the  pre- 
ceding paragraph  will  determine  the  matter  when  applied  to  the 

facts  in  the  case. 

E.  H.  Crowder, 
Judge  Advocate  General. 

[First  indorsement.] 

War  Department, 
Judge  Advocate  General's   Op^fice, 

Octoher  i,  1912. 
To  the  Chief  of  Staff  : 

1.  Tlie  accompanying  memorandum  from  the  War  College  Divi- 
sion, Office  of  the  Chief  of  Staff,  is  referred  by  the  Acting  Chief  of 
Staff,  September  26,  1912,  for  opinion  on  the  questions  raised  therein 
regarding  the  construction  of  certain  provisions  of  section  2  of  the 
Army  appropriation  act  of  August  24,  1912  (Public,  No.  338),  for 
the  ci'eation  of  an  Arm}'  Reserve. 

2.  The  section  provides,  inter  oMa^  for  all  enlistments  on  and  after 
November  1,  1912,  to  be  for  terms  of  seven  years,  "  the  first  four  years 
in  the  service  with  the  organizations  of  which  those  enlisting  shall 
form  a  part  and,  except  as  otherwise  provided  herein,  the  last  three 
years  on  furlough  and  attached  to  the  Army  reserve  hereinafter 
provided  for." 


I 


DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENEBAL.  77 

Then  follows  seven  provisos,  which  may  be  brietty  refeire.l  l<.  in 
their  order  as  providing  as  follows: 

First.  For  reenlistnient  for  anotliei-  period  of  seven  years,  aittr 
four  years'  contiriuous  service  under  any  enHstmenf,  with  tinid  dis- 
charge from  previous  enlistment. 

Second.  For  furlough  to  reserve  upon  written  application  ••ali»r 
three  years'  contmuous  service''  in  the  discretion  of  the  Secreturv  of 
War. 

Third.  For  four  years  "as  an  enlistment  period  f«.i-  (•(.iiii)iitiiig 
continuous-service  pay." 

Fourth.  For  defining  the  "Army  Reserve"  as  consisting  of  "all 
enlisted  men  who,  after  Tutnng  served  not  less  than  four  years  with 
the  organizations  of  trhich  th^y  form. a  part,  shall  i-ecei\e  furloughs," 
etc.,  and  that  '•''when  any  soldv'r  is  farloughed  to  tlie  reserve  his 
accounts  shall  be  closed,  and  he  shall  be  paid  in  full  to  the  date  sneli 
furlough  becomes  effective." 

Fifth.  For  the  soldier  under  certain  conditions,  upon  his  wnticu 
application,  to  "have  the  right  of  remaining  with  tlie  organization 
to  which  he  belongs  until  the  completion  of  his  Avhole  eidistnient 
without  passing  into  the  Reserve." 

Sixth.  For  the  final  discharge,  except  as  provided  in  the  first  pro- 
viso "or  as  now  otherwise  provided  by  law,"  only  upon  completion 
of  full  term  of  seven  years;  for  reenlistment  "  for  a  fui-ther  term  of 
seven  years  under  the  same  conditions  in  the  Army  at  large,  or,  in  the 
discretion  of  the  Secretary  of  War,  for  a  term  of  three  years  iji  the 
Army  Reserve'''';  and  for  enlistment  in  the  Army  reserve  for  three 
years  of  any  honorably  discharged  soldier  with  character  "  at  least 
good  and  who  has  been  found  physically  qualified  for  the  duties  of  a 
soldier,  if  not  over  45  years  of  age." 

Seventh.  For  the  summoning  by  the  President,  "  in  the  event  of 
actual  or  threatened  hostilities  *  *  *  when  so  authorized  hy 
Congress  *  *  *  all  furloughed  soldiers  vho  belong  to  the  Army 
Reserve  to  rejoin  their  respective  organizations^  and  during  the  con- 
tinuance of  their  services  with  such  organizations  they  shall  receive 
the  pay  and  allowances  authorized  by  law  for  soldiers  serving 
therein,  and  any  enlisted  man  who  shall  have  reenlisted  in  th'  Army 
Reserve  shall  receive  during  such  service  the  additional  pay  now 
provided  by  law  for  the  soldiers  of  his  arm  of  the  service  in  their 
second  enlistment  period.  Upon  reporting  for  duty  and  being  found 
physically  fit  for  service  they  shall  receive  a  sum  equal  to  $.">  per 
month  for  the  months  during  which  they  have  belonged  to  the  re- 
serve, as  well  as  the  actual  cost  of  transportation  and  subsistence 
from  their  homes  to  the  places  at  which  they  may  be  ordered  to  re- 
port for  duty  under  such  summons." 

3.  It  will  be  noted  that  the  fourth  proviso  defines  the  "Army  Re- 
serve" as  consisting  "of  all  enlisted  men  who,  after  having  served 
not  less  than  four  years  with  the  organizations  of  which  they  form  a 
part,  shall  receive  furloughs  without  pay  or  allowances  until  the 
expiration  of  their  terms  of  enlistment,"  etc.,  while  the  second  pro- 
viso gives  the  Secretary  of  War  discretion  to  furlough  and  trransfer 
to  the  Army  Reserve  "any  enlisted  man  at  the  expii-ation  of  tjiree 
years'  continuous  service  *  *  *  upon  his  wiitten  application,' 
etc.;  and  the  sixth  proviso  authorizes  the  reenlistment  of  men  dis- 
charged at  the  expiration  of  the  seven-year  term,  "  in  the  discretion 


78  DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

of  the  Secretary  of  War,  for  a  term  of  three  years  in  the  Army  Re- 
serAe,"  and  also  authorizes  the  enlistment  of  any  person  who  may 
have  been  discharged  honorably  from  the  Kegular  Army  with  char- 
acter reported  "  at  least  good  *  *  *  in  tlie  Army  Reserve  for  a 
similar  term  of  three  years."  It  is  clear  from  the  section  as  a  whole 
that  the  Army  Eeserve  consists  of  four  classes,  viz : 

(«)   Those  furloughed  to  the  Reserve  at  the  end  of  three  years; 

(Z>)   Those  fiironghed  to  the  Reserve  at  the  end  of  four  years; 

(c)  Those  who  reenlist  in  the  Army  Reserve  at  the  expiration  of 
their  full  term  of  seven  years;  and 

i^d)  Those  who  being  honorably  discharged  soldiei's  of  the  Regu- 
lar Army  enlist  in  the  Reserve  as  authorized  in  the  sixth  proviso. 

The  fourth  proviso  appears,  therefore,  to  be  only  a  partial  defini- 
tion of  the  Army  Reserve  and  should  be  so  regarded.  The  latter 
part  of  that  proviso,  however,  broadly  provides  that  "when  any 
soldier  is  furloughed  to  the  Reserve  his  accounts  shall  be  closed  and 
he  shall  be  paid  in  full  to  the  date  such  furlough  becomes  effective," 
and  should,  it  is  believed,  be  held  to  apply  to  soldiers  furloughed 
and  transferred  at  the  end  of  three  years  as  well  as  those  furloughed 
and  transferred  at  the  end  of  four  years.  Treating  the  fourth  pro- 
viso as  a  partial  definition  only,  there  appears  to  be  no  occasion  to 
further  consider  the  question  of  conflict  between  the  second  and 
fourth  provisos. 

4.  It  will  be  convenient  to  consider  the  second  and  third  questions 
together,  viz : 

"(•J)  Do  men  who  enlist  or  reenlist  in  the  Army  Reserve  form  a 
class  different  from  the  Army  Reserve  composed  of  furloughed  sol- 
diers, and  after  enlisting  or  reenlisting  in  the  Army  Reserve  are  they 
to  be  considered  as  belonging  to  a  particular  organization  and  as  on 
furlough  from  that  organization  ? 

"(3)  Does  the  term  '  furloughed  soldier,'  on  line  42,  page  25  (Pub- 
lic, No.  338),  include  all  classes  of  reserves,  i.  e.,  those  whose  enlist- 
ment has  not  yet  expired  and  those  wlio  have  enlisted  or  reenlisted 
in  the  Army  Reser\  e  I  " 

It  will  be  observed  that  the  statute,  while  providing  for  an  Army 
Reserve,  does  not  make  any  provision  for  its  organization  as  such, 
nor  does  it  provide  for  the  men  authorized  to  be  "enlisted  in  the 
Army  Reserve"  to  be  attached  to  particular  organizations  of  the 
Regular  Army.  The  second  and  fourth  provisos  authorize  soldiers 
to  be  furloughed  and  transferred  to  the  Army  Reserve  tcithouf  dis- 
charge after  three  and  four  years,  respectively,  to  serve  out  their 
enlistments  in  the  Reserve;  the  fourth  proviso  referring  to  the 
soldiers  transferred  after  four  years'  service  as  forming  "a  part" 
of  their  respective  organizations:  and  the  seventh  proviso  is  that  "  in 
the  e^ent  of  actual  or  threatened  hostilities  the  President,  when  so 
authorized  by  Congress,  may  summon  aJl  furloughed  soldiers  that 
helong  to  the  Army  Reserve  to  rejoin  their  organizations.'''' 

Taking  these  several  provisions  together,  it  would  seem  that  the 
statute  contemplates  that  soldiers  furloughed  and  transferred  to  the 
Reserve  are  to  be  regarded  as  on  furlough  from  their  respective 
organizations,  although  they  can  not  be  called  upon  "  to  rejoin  their 
respective  organizations"  except "  in  the  event  of  actual  or  threatened 
hostilities  *  *  *  when  so  authorized  by  Congress."  The  sixth 
proviso  authorizes  reenlistments  and  enlistments  in  the  Army  Re- 


DIGEST   OF   OPINIOXS   OF    THE    JUDGE   ADVOCATE   GENERAL.  79 

serve^  which,  as  aheady  constituted,  is  not  organized;  and  as  al- 
ready constituted  there  is  no  pro\  ision  for  tiie  men  so  enlisted  to 
be  attached  to  any  particular  organization  of  the  Regular  Aruiv.  I 
am  therefore  of  opinion  that  the  men  who  reenlist  or  enlist  in  the 
Army  Reserve  form  a  class  different  from  the  furloughed  s«jldiers 
in  that  they  are  not  regaided  as  in  any  sense  belonging  to  any  or- 
ganization, but  simply  to  the  unorganized  Army  Eeserve.  I  ani  fur- 
ther of  opinion  that  the  term  "furloughed  soldiers"  in  the  seventh 
proviso  refers  onlj^  to  those  whose  enlistments  have  not  yet  expired — 
that  is,  to  those  who  have  been  furloughed  and  transferred  to  the 
Eeserve  as  authorized  in  the  second  and  fourth  provisos,  and  does  not 
include  those  who  have  reenlisted  or  enlisted  in  the  Army  Resei've; 
but  the  efi^ect  of  the  following  provisions,  namely,  "  and  any  enlisted 
man  who  shall  have  reenlisted  in  the  Army  Reserve  shall  receive  <lui- 
ing  such  service  the  additional  pa}'  now  provided  by  law  for  the 
soldiers  of  his  arm  of  the  service  in  their  second  enlistment  pei-i(jd. 
Upon  reporting  for  duty  and  being  found  physically  fit  for  service, 
they  shall  receive  a  sum  equal  to  $5  a  month  for  each  month  during 
which  they  shall  have  belonged  to  the  Reserve,  as  well  as  the  actual 
cost  of  transportation  and  subsistence  from  their  homes  to  the  places 
at  which  they  may  be  ordered  to  report  for  duty  under  such  sum- 
mons," is  to  indicate  that  not  only  "  furloughed  soldiers  who  belong 
to  the  Reserve"  but  also  those  who  shall  have  "reenlisted"  or  "en- 
listed" in  the  Reserve  are  to  be  subject  to  be  summoned  by  the 
President  for  active  duty  "  in  the  event  of  actual  or  threatened  hos- 
tilities *  *  *  when  so  authorized  by  Congress,"  and  that  when 
so  summoned  all  will  be  under  like  obligation  to  report  and  serve 
in  obedience  to  the  summons. 

5.  In  support  of  these  views  it  may  be  observed  that  the  seventh 
proviso  appears  to  distinguish  between  soldiers  covered  by  the  term 
"  all  furloughed  soldiers  who  belong  to  the  Army  Reserve  "  and  those 
who  have  reenlisted  "in  the  Army  Reserve."  in  that  the  foinier 
"during  the  continuance  of  their 'service  with  such  organizations 
*  *  *  shall  receive  the  pay  and  allowances  authorized  by  law 
for  soldiers  serving  therein,"  and  that  the  latter  "shall  receive  dur- 
ing such  service  the  additional  pay  now  pro\ided  by  law  for  the 
soldiers  of  his  arm  of  the  service  in  their  second  enlistment  period." 
While,  therefore,  the  term  "furloughed  soldiers"  appears  to  be  hin- 
ited  to  those  who  have  been  furloughed  to  the  Reserve,  without  <hs- 
charge,  after  three  or  four  vears'  service,  the  i^rovision  respecting 
those  who  have  "reenlisted  "in  the  Army  Reser\e,"  that  they  shall 
receive  "<^?mn^  such  service  the  additional  pay  now  provided  by  hiw 
for  the  soldiers  in  his  arm  of  the  service  in  their  second  enlistment 
period,"  together  with  the  concluding  sentence  providing  tor  a 
bountv  for  members  of  the  Reserve  when  reporting  for  duty  ''  under 
such  summons:'  clearlv  indicates  a  legislative  intent  that  not  only 
furloughed  soldiers  but  all  the  members  of  the  Army  l.eserxe  as 
well  should  be  liable  to  be  summoned  under  similar  conditions.  It 
mav  be  further  added  that,  while  the  statutory  provision  for  sum- 
moning the  Reserves  is  not  very  definite  and  complete,  the  sumnion- 
ino-  of  the  Reserves  depends  upon  future  authority  f rt)m  C  ongress, 
and  such  authority,  when  given,  will  include  all  the  necessary  inci- 
dent powers  to  make  the  Reserve  an  effective  body. 


80  DTGEST  OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

G.  I  would  therefore  answer  the  three  questions  submitted  in  the 
accompanying  memorandum  as  follows: 

(1)  That  the  fourth  proviso  should  be  regarded  as  only  a  partial 
definition  of  the  "Army  Reserve,"  and  that  the  section  as  a  whole 
indicates  that  the  Army  Reserve  includes,  along  with  those  fur- 
loughed  at  the  end  of  four  years,  those  furloughed  on  their  applica- 
tions at  the  end  of  three  years,  together  with  those  who  reenlist  or 
enlist  "in  the  Army  Reserve"  as  authorized  in  the  section. 

(2)  That  the  men  who  enlist  or  reenlist  in  the  Army  Reserve 
form  a  class  different  from  the  Army  Reserve  composed  of  fur- 
loughed soldiers  only  in  respect  to  the  fact  that  they  do  not  enter 
the  Reserve  by  way  of  furlough  from  particular  organizations,  and 
that  the  provision  for  their  pay  when  summoned  for  active  duty  is 
somewhat  different  from  that  of  soldiers  furloughed  to  the  Army 
Reserve,  but  that  they  are  under  the  same  obligations  to  report  for 
service  when  summoned  by  the  President,  in  the  event  of  actual  or 
threatened  hostilities,  when  so  authorizecl  bv  Congress. 

(3)  That  the  term  *' furloughed  soldiers  "'(line  42,  p.  25,  Public, 
No.  338)  includes  those  w'ho  have  been  furloughed  to  the  Reserve 
at  the  end  of  three  or  four  years'  service  and  whose  enlistments  have 
not  yet  expired,  but  does  not  include  those  who  have,  reenlisted  or 
enlisted  in  the  Army  Reserve.  However,  as  stated  in  the  answer  to 
the  second  question,  all  classes  of  the  Reserve  are  under  like  obliga- 
tions to  report  for  duty  when  summoned  under  authority  of  Con- 
gress as  specified  in  the  statute. 

E.  H.  Crowder, 
Judge  Advocate  General. 

[Second  indorsement.] 

War  Department, 
Judge  Advocate  General's  Office, 

August  28,  1912. 
To  The  Adjutant  General. 

It  is  clear  that  the  Quartermaster  Corps  came  into  legal  existence 
August  24.  1912,  the  date  of  the  approval  of  the  act  wiiich  carried 
the  provision  for  consolidation  of  the  Quartermaster's,  Subsistence, 
and  Pay  Departments.  Thereafter  no  details  to  the  grade  of  cap- 
tain in  said  corps  could  be  made  or  could  become  effective  until  the 
number  of  officers  in  that  grade  of  said  corps  should  be  reduced  from 
the  present  consolidated  strength  to  102.  It  follows  that  the  detail 
of  Capt.  Smith,  by  paragraph  27,  Special  Orders,  No.  177',  dated 
July  29.  1912,  to  fill  a  vacancy  August  31,  1912,  is  not  operative  under 
the  conditions  which  have  obtained  since  the  enactment  of  the  legis- 
tion  for  the  consolidation  above  referred  to.  The  period  of  60  days 
Avhich  is  provided  for  in  the  law  for  putting  into  effect  the  provisions 
of  the  act  respecting  consolidation  is  plainly  for  the  purpose  of  or- 
ganizing the  administration  of  the  new  corps,  but  its  effect  is  limited 
to  that,  and  it  does  not  postpone  the  creation  of  a  neAv_ corps  to  a  date 
later  than  the  approval  of  the  act. 

E.  H.  Crowder, 
Judge  Advocate  General. 


DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE   GENERAL.  81 

September  3.  r.tlj. 
From:  The  Judge  Advocate  General. 
To:  The  Chief  of  Staff. 
Subject :  Construction  of  section  3,  act  of  August  24,  1012. 

1.  I  have  before  me  for  remark  a  memorandum  dated  August  28, 
1912,  in  which  Maj.  Gen.  Aleshire.  as  Chief  of  the  Quartermaster 
Corps,  outlines  certain  steps  which  he  desires  to  have  taken  at  <jnce 
with  a  view  to  carrying  into  effect  the  provisions  of  section  3  of  the 
Army  appropriation  act  approved  August  24.  1912.  That  section, 
after  providing  for  the  consolidation  of  the  office  establishments  of 
the  Quartermaster  General,  the  Commissary  General,  and  the  l*ay- 
master  General  of  the  Army  into  a  single  bureau  of  the  War  De- 
partment, to  be  known  as  the  Quartermaster  Corps,  and  for  the  con- 
solidation of  the  Quartermaster's,  Subsistence,  and  Pay  Departments 
of  the  Army  into  a  single  corps,  to  be  known  as  the  Quarterma-tor 
Corps  of  the  Army,  continues: 

'■^  Arul  provuled  further,  That  for  the  purpose  of  carrying  into 
effect  the  pro^^sions  of  this  section  the  President  is  hereby  author- 
ized to  appoint,  by  and  with  the  advice  and  consent  of  the  Senate, 
the  Chief  of  the  Quartermaster  Corps  herein  provided  for  immedi- 
ately upon  the  passage  of  this  act.  and  it  shall  be  the  duty  of  the  sjiid 
chief,  under  the  direction  of  the  President  and  the  Secretary  of  War, 
to  put  into  effect  the  provisions  of  this  section  not  less  than  sixty 
days  after  the  passage  of  this  act." 

2.  While  there  may  be  an  idiomatic  use  of  the  phrase  "not  less 
than,"  which  in  connection  with  the  preceding  portions  of  the  sec- 
tion might  support  the  view  that  the  proviso  quoted  above  amounts 
to  a  legislative  mandate  to  complete  the  consolidation  within  the 
60-day  period,  regard  for  the  fact  that  the  Secretary  of  War.  under 
date  of  March  29.  1912,  addressed  to  the  chainnan  of  the  Senate 
Committee  on  Military  Affairs  a  recommendation  that  "  provision 
be  made  that  a  period  of  two  months  shall  elapse  between  the  ap- 
proval of  the  act  providing  for  the  consolidation  and  the  date  upon 
which  the  consolida.tion  shall  be  put  into  effect":  that  this  recom- 
mendation was  followed  by  the  introduction  of  a  proviso  substan- 
tially identical  with  the  one  here  under  consideration  (Conference 
Kept.  No.  762,  May  27.  1912.  on  H.  K.  18956)  :  that  while  some  of 
the  language  employed  in  the  proviso  as  reported  by  the  conference 
committee  on  Mav  27  was  subsequentlv  substituted  by  other  language 
(Conference  Report  of  Aug.  21.  1912.  on  H.  R.  2oo31).  the  clause 
"to  put  into  effect  the  provisions  of  this  section  not  less  than  sixty 
days  after  the  passage  of  this  act "  was  left  unchanged :  and  that  the 
proviso,  when  interpreted  in  accordance  with  the  ordinary  and  literal 
signification  of  the  terms  used  therein,  mav  be  construed  as  a  re- 
sponse to  and  compliance  with  the  request  of  the  Secretary  of  War 
for  a  period  of  postponement,  constrains  me  to  take  the  view  that 
the  proviso  should  be  construed  as  decreeing  a  postponement  of  the 
administrative  execution  of  the  consolidation  for  a  period  of  60  days, 
during  which  period  the  principal  steps  necessary  to  make  the  new 
office  establishment  and  the  new  corps  going  concerns  are  to  be 
taken,  and  that  the  administration  of  the  affairs  of  the  o&ces  and 

93668°— 17 6 


82  DIGEST   OF    OPINIONS   OF    T?T.E    JUDGE    ADVOCATE    GENERAL. 

flepartnients  consolidated  by  the  act  may  not  be  assumed  by  the  new 
bureau  and  corps  until  60  days  after  the  approval  of  the  act. 

3.  The  acceptance  of  this  view  does  not  imply  that  the  60-day 
period  is  to  be  one  of  inaction  in  respect  of  the  consolidation.  On 
the  contrary,  every  effort  should  be  made  in  the  meantime  to  assure 
the  beginning  of  efficient  administration  under  the  provisions  of  the 
consolidation  section  at  the  close  of  the  60-day  period  or  as  soon 
thereafter  as  possible.  To  that  end  officers  of  the  old  Subsistence 
and  Pay  Departments  may  be  directed  to  cooperate  with  the  Chief 
of  the  Quartermaster  Corps  in  making  necessary  preparations,  and 
orders  may  issue  prescribing  the  course  of  administration  under  the 
section  and  directing  that  the  same  be  put  into  administrative  opera- 
tion upon  a  given  date,  which  should,  of  course,  be  at  the  close  of 
the  60-day  period  or  as  soon  thereafter  as  practicable. 

4.  Consideration  of  the  entire  section  leads  to  the  view  that  in 
determining  the  point  of  time  at  which  each  of  the  several  provi- 
sions of  the  section  became  effective  or  may  become  effective  a  dis- 
tinction is  to  be  observed  between  provisions  of  a  nature  to  become 
effective  by  mere  operation  of  law  and  those  which  require  affirma- 
tive executive  or  administrative  action  to  give  them  effect.  Provi- 
sions falling  in  the  first  class  became  effective  immediately  upon  the 
approval  of  the  act,  while  those  of  the  second  class  may  not  be  placed 
in  operation  until  60  days  after  the  approval  of  the  act,  except  in 
so  far  as  the  final  proviso  of  the  section  requires  or  authorizes  execu- 
tive action  prior  to  the  expiration  of  the  60-day  period.  That  pro- 
viso authorized  and  required  the  immediate  appointment  of  the 
Chief  of  the  Quartermaster  Corps,  a  step  that  has  already  been  taken, 
and  further  authorizes  and  requires  prompt  executive  preparation, 
to  the  end  that  the  administration  of  affairs  may  be  begun  by  the 
consolidated  bureau  and  corps  60  days  after  the  approval  of  the  act 
or  as  soon  thereafter  as  practicable. 

5.  The  provision  changing  the  official  designations  of  officers  of  the 
Quartermaster's,  Subsistence,  and  Pay  Departments  does  not  require 
the  aid  of  affirmative  executive  action  to  make  the  change  effective. 
That  provision  therefore  took  effect  upon  approval  of  the  act.  It  is 
therefore  proper  to  employ  the  new  designations  in  respect  of  all 
officers  of  the  old  departments  named  above.  However,  as  the  affairs 
of  the  old  departments  must  for  a  period  of  not  less  than  60  days 
after  August  24,  1912,  continue  to  be  administered  by  the  officers  in 
charge  and  under  the  law  in  effect  prior  to  the  date  mentioned,  pos- 
sible confusion  and  delay  in  the  transaction  of  public  business  will 
probably  be  avoided  by  continuing  the  use,  parenthetically,  of  the  old 
official  designations  in  addition  to  the  new  ones  until  administration 
by  the  consolidated  corps  takes  the  place  of  administration  by  the 
three  separate  departments  included  in  the  consolidation. 

6.  If  before  the  expiration  of  the  60-day  period  vacancies  should 
occur  among  the  noncommissioned  staff  officers  heretofore  known 
as  post  quartermaster  sergeants  or  post  commissary  sergeants,  it 
would  not  be  necessary  to  invoke  the  new  law  in  order  to  find  au- 
thority for  making  appointments  to  fill  such  vacancies,  except  in  so 
far  as  the  official  designations  of  the  positions  are  concerned.  It  is 
therefore  my  opinion  that  during  the  period  in  question  such  vacan- 
cies may  be  filled  in  conformity  with  the  law  and  regulations  hereto- 


DIGEST  OF   OPINIONS  OF   THE   JUDGE    ADVOCATE   GENERAL.  83 

fore  ill  force,  except  that  the  appointees  would  be  designated  as 
"quartermaster  sergeants"  instead  of  as  "post  quartoruiaster  ser- 
geants "  or  "  post  commissary  sergeants."  The  same  reasoning  would 
apply  to  vacancies  among  the  clerks  heretofore  known  as  Army  pay- 
masters' clerks,  but  who  are  now  to  be  designated  as  ''  pay  clerks." 

7.  With  reference  to  the  provision  which  authorizes  the  advance- 
ment to  the  grade  of  major  of  not  to  exceed  six  captains  holding 
commissions  in  the  Quartermaster  Corps  it  is  to  be  noted  that  the 
advancement  thus  authorized  does  not  take  place  by  oi)eration  of 
law.  Affirmative  executive  action  is  a  condition  ])recedent  to  the 
advancement.  The  advancement  of  these  officers  is  not  a  necessjiry 
element  or  incident  of  executive  preparation  to  put  the  section  into 
administrative  operation  at  the  expiration  of  the  GU-day  period. 
Furthermore,  the  specific  authorization  for  the  immediate  ajjpoint- 
ment  of  the  Chief  of  the  Quartermaster  Corps,  in  connection  \vith 
what  follows  in  the  same  proviso,  impliedly  forbids  for  a  period  of 
not  less  than  60  days  other  appointments  the  authority  for  wjiidi 
is  found  only  in  the  section  providing  for  the  consolidation.  The 
advancement  of  the  captains,  referred  to,  must  therefore,  in  my  opin- 
ion, be  deferred  until  60  days  after  the  approval  of  the  act. 

8.  The  section  also  provides  that  no  details  to  fill  vacancies  in  the 
grade  of  colonel  in  the  Quartermaster  Corps  shall  be  made  until  the 
number  of  officers  of  that  grade  shall  have  been  reduced  by  a  specified 
number;  prescribes  a  similar  rule  respecting  vacancies  in  the  grades 
of  lieutenant  colonel,  major,  and  captain,  and  then  continues: 

"  Whenever  the  separation  of  a  line  officer  of  any  grade  and  arm 
from  the  Quartermaster  Corps  shall  create  therein  a  vacancy  that 
under  the  terms  of  this  proviso  can  not  be  filled  by  detail,  such  sep- 
aration shall  operate  to  make  a  permanent  reduction  of  one  in  (ho 
total  number  of  officers  of  said  grade  and  arm  in  the  line  of  the 
Army  as  soon  as  such  reduction  can  be  made  without  depriving  any 
officer  of  his  commission." 

While  it  is  true  that  the  occurrence  of  vacancies  might  be  hastened 
by  executive  action,  the  number  of  vacancies  necessary  to  etfect  the 
prescribed  reduction  is  bound  to  develop  in  the  course  of  time  l)y 
reason  of  expirations  of  the  statutory  term  of  service  under  detail 
in  a  staff  corps  or  department,  retirements  by  operation  of  law, 
deaths,  etc.  As  these  provisions  require  no  affirmative  executive 
action  under  authority  of  the  new  law  to  give  them  effect,  but  con- 
stitute an  inhibition  upon  executive  action  under  specified  circnm- 
stances,  I  am  of  the  opinion  that  said  provisions  became  eliectiye 


^^^ ^^  ^_ ^_ ^^ requu 

have  been  accomplished.  Details  to  the  old  Quartermaster's,  Sul)- 
sistence,  and  Pay  Departnients  may  of  course  no  longer  be  made  or 
permitted  to  become  effective.  .  re     •        ax 

9.  After  the  consolidation  becomes  administratively  effective  otti- 
cers  now  bonded  as  officers  of  the  Quai-termaster's,  Subsisten.T.  or 
Pay  Departments  may  be  called  upon  to  perform  duties  beyond  the 
scope  of  their  present  duties,  or  to  handle  money  or  property  that 


84  DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

would  not  have  come  into  their  hands  under  the  law  in  force  at  the 
time  their  bonds  were  secured.  It  is  accordingly  recommended  that 
steps  be  taken  to  assure  that  before  entering  upon  his  duties  under 
the  consolidation  each  officer  of  the  new  corps  shall  be  bonded  as  such. 
10.  The  remarks  contained  in  paragraph  6,  supra,  are  in  response 
to  a  memorandum  dated  August  30,  1912,  from  the  Chief  of  the 
Quartermaster  Corps,  and  a  memorandum  of  the  same  date  from  the 
oifice  of  the  Commissary  General.  Those  papers,  as  well  as  the 
paper  mentioned  in  paragraph  1,  supra^  are  returned  herewith. 

E.  H.  Crowder, 
Judge  Advocate  General. 

[Third  indorsement.] 

War  Department, 
Judge  Advocate  General's  Office, 

Octoher  2,  1912. 
To  The  Adjutant  General. 

1.  In  an  indorsement  dated  September  13,  1912,  with  reference  to 
a  request  made  under  date  of  September  10,  1912,  by  Capt.  Frederick 
H.  Pomroy,  theretofore  commissioned  as  captain  in  the  Subsistence 
Department,  to  be  promoted  to  the  grade  of  major  in  the  Quarter- 
master Corps,  vice  Maj.  Beecher  B.  Ray,  paymaster,  promoted  on 
August  27,  1912,  to  be  deputy  paymaster  general,  with  the  rank  of 
lieutenant  colonel,  from  February  16,  1912,  this  office  said  in  part : 

"  5.  The  memorandum  accompanying  the  request  for  decision 
raises  the  further  question  of  whether  Capt.  Pomroy  could  be  pro- 
moted to  the  Hay  vacancy  '  subject  to  examination '  under  the  provi- 
sions of  section  32  of  the  act  of  February  2,  1901.  I  am  clearly  of 
the  opinion  that  he  may  not  be  so  promoted.  That  section  gives 
this  right  only  when  exigencies  of  the  service  require  an  officer  to 
remain  absent  from  any  place  where  the  examining  board  could  be 
convened,  but  this  condition  is  not  shown  to  exist  in  the  case  of  Capt. 
Pomroy."     (6-224.) 

2.  The  papers  in  reference  on  September  13,  1912,  have  been  re- 
ferred to  this  office  for  further  remark  in  connection  with  a  letter 
from  Capt.  Pomroy,  in  which  he  states,  under  date  of  September  18, 
1912,  that  he  was  ordered  to  Chicago  on  April  2,  1912,  for  exami- 
nation for  promotion ;  that  the  medical  members  of  the  board  held 
that  he  was  incapacitated  for  active  service  by  reason  of  disability 
incident  thereto  and  would  probably  have  to  be  retired,  but  in  view 
of  the  possibility  of  his  recovery  they  recommended  that  he  be  sent 
to  some  general  hospital  for  observation  and  treatment;  and  that  at 
the  Walter  Reed  General  Hospital  the  medical  officers,  after  more 
than  four  months'  observation  and  treatment  of  Capt.  Pomroy.  rec- 
ommended that  he  be  given  four  months'  sick  leave,  on  the  theory 
that  the  physical  disability  from  which  he  was  suffering  was  not 
organic  and  that  he  would  entirely  recover  therefrom  and  be  fit  for 
active  service.  It  is  understood  that  Capt.  Pomroy  is  at  present  on 
sick  leave,  granted  in  view  of  the  conditions  just  stated.  He  urges 
that  these  facts  are  sufficient  to  warrant  his  promotion  subject  to 
examination.  None  of  these  facts  appeared  in  the  papers  before 
me  when  the  indorsement  of  September  13,  1912,  was  prepared. 


DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL.  85 

3.  Section  32  of  the  act  of  February  2,  1901  (31  Stat.,  750).  pro- 
vides: 

"  That  when  the  exigencies  of  the  service  of  any  officer  who  wouhl 
be  entitled  to  promotion  upon  examination  reciilire  him  t<j  remain 
absent  from  any  phice  where  an  examining  board  could  be  convened 
the  President  is  hereby  authorized  to  piomote  such  officer,  subject 
to  examination,  and  the  examination  shall  take  jdace  as  soon  tliere- 
after  as  practicable.  If  upon  examination  the  officer  be  found 
disqualified  for  promotion  he  shall,  upon  the  ai)|)roval  of  the  pro- 
ceedings by  the  Secretary  of  War,  be  treated  in  the  same  manner  as 
if  he  had  been  examined  prior  to  promotion." 

4.  In  the  papers  before  me  on  September  13  there  was  nothing  to 
show  the  existence  of  an  exigency  of  the  service  of  Capt.  Pomroy 
Avhich  would  prevent  him  from  appearing  before  an  examining 
board.  If  the  case  under  consideration  were  one  of  first  impression. 
I  should  be  strongly  inclined  to  take  the  view  that  the  facts  now 
shown  to  exist  in  Capt.  Pomroy's  case  are  not  sufficient  to  bring  it 
within  the  terms  of  section  32  of  the  act  of  February  2,  1901,  so  as  to 
authorize  his  promotion  subject  to  examination.  However,  my 
predecessor  on  June  29,  1908,  in  construing  section  32,  supra^  sjiid : 

"  When  an  officer  is  suffering  from  wounds,  disease,  or  sickness 
which  require  him  to  remain  absent  from  any  place  where  an  exam- 
ining board  could  be  convened,  or,  what  is  the  same  thing,  if  such 
temporary  disability  is  such  as  to  prevent  him,  in  the  opinion  of  the 
])roper  medical  authority,  from  appearing  at  the  place  designated 
in  appropriate  military  orders  for  his  examination,  clearly  an  exi- 
gency of  the  service  exists  which  makes  it  impossible  for  him  to  so 
appear,  and  the  statute  becomes  fully  applicable  to  his  case. 

"  The  wrong  for  which  a  remedy  is  sought  *  *  *  consists  in 
the  difficulty  which  has  been  encountered  in  the  expeditious  advance- 
ment of  officers  who  have  been  found  qualified  for  promotion,  due  to 
the  fact  that  an  officer  whose  right  to  advancement  had  accrued  was 
unable,  on  account  of  sickness,  to  undergo  the  examination  reiiuired 
by  law.  It  is  believed  that  the  enactment  above  cited  a{tplies  an 
adequate  remedy  to  the  case  presented. 

"  It  is  therefore  the  opinion  of  this  office  that  where  an  officer 
whose  right  to  promotion  has  accrued  in  the  operation  of  the  act  of 
October  1,  1890,  is  obliged  by  reason  of  siclmess  to  remain  absent 
from  the  place  where  a  board  for  his  examination  has  been  con- 
vened by  the  President,  such  sickness,  when  verified  by  the  proper 
medical  authority,  constitutes  an  exigency  of  the  service  within  the 
meaning  of  section  32  of  the  act  of  February  2,  1901,  and  that  such 
officer  may  therefore  be  lawfully  advanced  to  the  next  highest  grade 
subject  to  examination,  which  shall  take  place  as  soon  thereafter  a^j 
practicable     *     *     *."     (C,  23090.) 

Furthermore,  in  the  preceding  indorsement,  dated  September  21, 
1912,  The  Adjutant  General's  Office  says  that  "It  has  been  the  ad- 
ministrative practice  to  construe  the  proAasions  of  section  32  of  th«i 
act  of  February  2,  1901,  providing  for  promotion  subject  to  ex- 
amination, as  covering  the  cases  of  officers  unable  to  appear  before 
the  examining  board  in  due  season  by  reason  of  physical  (lisability 
or  absence  abroad,  etc.,  and  where  delay  in  the  promotion  of  an  officer 
would  block  for  a  considerable  })eriod  the  promotion  of  his  juniors, 
whose  right  to  promotion  had  already  accrued";  and  then  cites  a 


86  DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

recent  case  in  point — that  of  Lieut.  Felker,  of  the  Cavalry,  who  ap- 
pears to  have  been  promoted,  subject  to  examination,  while  on  sick 

leave. 

5.  In  view  of  the  opinion  of  June  29,  1908,  supra^  which  no  doubt 
had  the  approval  of  the  Secretary  of  War,  and  of  the  administrative 
practice  mentioned  in  the  indorsement  of  September  21,  1912,  from 
The  Adjutant  General's  Office,  I  am  constrained  to  express  the  opin- 
ion that  under  the  conditions  shown  to  exist  in  Capt.  Pomroy's  case 
he  may,  if  those  conditions  still  exist  when  his  right  to  promotion 
shall  have  accrued,  be  promoted,  subject  to  examination  as  provided 
for  in  section  32  of  the  act  of  February  2,  1901. 

6.  Capt.  Pomroy's  request  of  September  10  raised  the  question  as 
to  whether  an  officer  heretofore  commissioned  in  the  Subsistence  De- 
partment may,  under  the  provisions  of  section  3  of  the  act  of  August 
24,  1912  (Public,  No.  338),  be  promoted  to  a  vacancy  in  the  next 
higher  grade  occasioned  in  the  Quartermaster  Corps  by  the  promo- 
tion of  an  officer  theretofore  holding  a  commission  in  the  Pay 
Department,  and  specifically  whether  or  not  Capt.  Pomroy,  being  the 
senior  captain  on  the  permanent  list  of  officers  of  the  departments 
included  in  the  consolidation  prescribed  by  said  section  3,  may  be 
promoted  to  the  grade  of  major  in  the  Quartermaster  Corps  to  fill  a 
vacancy  occasioned  by  the  promotion  of  Maj.  Beecher  B.  Ray,  pay- 
master, to  the  grade  of  lieutenant  colonel,  that  promotion  having 
been  made  on  August  27,  1912,  with  rank  from  February  16,  1912. 
There  being  no  captain  on  the  permanent  list  of  officers  of  the  former 
Pay  Department,  it  was  held  that  Capt.  Pomroy  may  be  promoted 
to  the  vacancy  in  question,  but  that  the  right  to  promotion  can  not 
be  held  to  antedate  the  approval  of  the  act  providing  for  the  estab- 
lishment of  the  Quartermaster  Corps  August  24,  1912.  (J.  A.  G.  O., 
6-224,  Sept.  13,  1912.)  Upon  further  consideration  I  have  arrived 
at  the  conclusion  that  the  right  of  an  officer  commissioned  as  a 
captain  in  the  Subsistence  Department  to  be  promoted  to  the  grade  of 
major  in  the  Quartermaster  Corps,  under  the  conditions  stated,  not 
only  can  not  antedate  the  approval  of  the  act  of  August  24,  1912,  but 
can  not  be  held  to  antedate  the  time  at  which  section  3  of  that  act 
becomes  administratively  effective. 

7.  The  concluding  provision  of  the  section  referred  to  in  the  pro- 
ceding  paragraph  reads  as  follows : 

'"''And  ^provided  further^  That  for  the  purpose  of  carrying  into 
effect  the  provisions  of  this  section  the  President  is  hereby  authorized 
to  appoint,  by-  and  with  the  advice  and  consent  of  the  Senate,  the 
Chief  of  the  Quartermaster  Corps  herein  provided  for  inmiediately 
upon  the  passage  of  this  act,  and  it  shall  be  the  duty  of  the  said 
chief,  under  the  direction  of  the  President  and  the  Secretary  of  War, 
to  put  into  effect  the  provisions  of  this  section  not  less  than  sixty 
days  after  the  passage  of  this  act." 

Concerning  that  section  this  office,  under  date  of  September  3, 
1912,  in  an  opinion  which  received  the  approval  of  the  Acting 
Secretary  of  War,  remarked  in  part  as  follows  : 

"In  determining  the  point  of  time  at  which  each  of  the  several 
provisions  of  the  section  became  or  may  become  effective,  a  distinc- 
tion is  to  be  observed  between  provisions  of  a  nature  to  become  effec- 
tive by  mere  operation  of  law  and  those  which  require  affirmative 
executive  or  administrative  action  to  give  them  effect.     Provisions 


DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL.  87 

falling  in  the  first  class  become  effective  immediately  upon  the 
approval  of  the  act,  while  those  of  the  second  class  may  not  be  placed 
in  operation  until  60  days  after  the  approval  of  the  act,  except  in  so 
far  as  the  final  proviso  of  the  section  requires  or  authorizes  executive 
action  prior  to  the  expiration  of  the  60-day  period. 

"  With  reference  to  the  provision  which  authoi-izes  the  advance- 
ment to  the  grade  of  major  of  not  to  exceed  six  captains  holding 
commissions  in  the  Quarteraiaster  Corps,  it  is  to  be  noted  tliat  the 
advancement  thus  authorized  does  not  take  place  by  operati<in  of 
law.  Affirmative  executive  action  is  a  condition  precedent  to  the 
advancement.  The  advancement  of  these  officers  is  not  a  necessary 
element  or  incident  of  executive  preparation  to  put  the  section  into 
administrative  operation  at  the  expiration  of  the  60-day  period. 
Furthermore,  the  specific  authorization  for  the  immediate  appoint- 
ment of  the  Chief  of  the  Quartermaster  Corps  in  connection  wiili 
what  follows  in  the  same  proviso  impliedly  forbids,  for  a  period  of 
not  less  than  60  days,  other  appointments  the  authority  for  which 
is  found  only  in  the  section  providing  for  the  consolidation.  The 
advancement  of  the  captains  referred  to  must  therefore,  in  luy 
opinion,  be  deferred  until  60  days  after  the  approval  of  the  act." 
(6-224.) 

8.  The  considerations  leading  to  the  view  that  the  six  captains  for 
the  advancement  of  which  special  provision  is  made  in  the  act  pro- 
viding for  the  establishment  of  the  Quartermaster  Corps  may  not 
be  advanced  in  grade  w^ithin  the  60-day  period  immediately  follow- 
ing the  approval  of  the  act,  or  until  section  3  of  the  act  is  put  into 
administrative  operation,  have  equal  force  in  precluding  the  pro- 
motion of  a  captain  of  the  Subsistence  Department  to  fill  a  vacancy 
occasioned  in  the  grade  of  major  by  the  promotion  or  retirement 
of  a  major  in  the  old  Pay  or  Quartermaster's  Department.  Vi\\)l. 
Pomroy,  for  example,  has  no  present  right  to  promotion  to  the 
grade  of  major  as  an  officer  of  the  Subsistence  Department,  there 
being  no  vacancy  above  the  grade  of  captain  in  that  department. 
The  law  in  force  prior  to  August  24,  1912,  can  not  therefore  l)e  in- 
voked as  warrant  for  Capt.  Pomroy's  promotion  at  this  time.  His 
promotion  could  take  place  only  by  virtue  of  section  3  of  the  act 
of  August  24,  1912,  but  the  pro\nsions  of  that  section  can,  at  the 
present  time,  be  invoked  as  authority  for  administrative  action  only 
in  so  far  as  such  administrative  action  is  necessary  by  way  of 
preparation  to  put  the  entire  section  into  administrative  operation 
on  or  after  the  expiration  of  60  days  after  the  approval  of  the  act, 
and  Capt.  Pomroy's  promotion  is  not  a  necessary  element  or  inci- 
dent of  such  preparation.  ,  ,   ^       ,  .     « 

9.  The  administration  of  the  affairs  of  the  old  Q.uartennastei-s, 
Subsistence,  and   Pay  Departments  is  now   proceeiling  ""*1^'''  ^'j;' 


departments  may  X... .  ^  <-,        .-  -    •        -^  j       ..i 

roy,  as  an  officer  of  the  old  Subsistence  Department,  is  invested  with 
certain  powers  and  duties.  Should  he  be  appointed  a^  major  in  tlie 
Quartermaster  Corps,  he  would  vacate  his  present  office  and  .-eiiso 
to  be  vested  with  the  power  to  perform  the  duties  ot  that  ollice. 


88  DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

The  Quartermaster  Corps,  as  such,  has  not  as  yet  become  vested 
with  administrative  powers  and  duties,  and  with  no  warrant  for 
official  action  bevond  an  appointment  in  the  Quartermaster  Corps 
this  officer  would,  in  my  opinion,  be  without  legal  powers  and 
duties  until  section  3  is  put  into  administrative  operation.  It  can 
not  be  supposed  that  Congi'ess  intended  to  bring  about  such  a  con- 
dition of  affairs. 

10.  I  am  accordingly  of  the  opinion  that  the  promotion  of  Capt. 
Pomroy  to  the  grade  of  major,  rice  Ray,  as  well  as  the  advance- 
ment of  the  captains  for  which  special  provision  is  made  in  section 
3  of  the  act  of  August  24.  1912,  must  be  deferred  until  the  date 
upon  which  said  section  3  is  put  into  administrative  operation,  and 
that  the  rank  of  said  officers  as  majors  in  the  Quartermaster  Corps 
can  not  antedate  the  latter  elate.  The  same  reasoning  and  the  same 
conclusions  apply  in  the  case  of  a  promotion  to  fill  the  vacancy 
caused  by  the  retirement  on  September  11,  1912.  of  Maj.  Daniel  AV. 
Arnold  of  the  old  Quartermaster's  Department. 

E.  H.  Crowder, 
Judge  Advocate  General. 


October  8,  1912. 
From:  The  Judge  Advocate  General. 
To:  The  Chief  of. Staff. 

Subject:  Absorption  of  officers,  pursuant  to  section  3  of  the  act  of 
August  24,  1912. 

1.  I  have  before  me  a  memorandum  in  Avhich.  under  date  of  October 
7,  1912,  the  Acting  Chief  of  Staff  requests  an  opinion  as  to  the  date 
upon  which  that  portion  of  the  recent  legislation  consolidating  the 
Quartermaster's.  Subsistence,  and  Pay  Departments  which  requires 
the  absorption  of  a  certain  number  of  officers  became  or  shall  become 
effective. 

2.  The  legislation  referred  to  is  found  in  section  3  of  the  act  of 
August  24.  1912  (Public,  No.  338).  Avhich.  in  so  far  as  material  to 
the  present  inquiry,  reads  as  follows : 

"  Sec.  3.  *  *  *  The  Quartermaster's.  Subsistence,  and  Pay  De- 
partments of  the  Army  are  hereby  consolidated  into  and  shall  here- 
after be  known  as  the  Quartermaster  Corps  of  the  Army.  The  offi- 
cers of  said  departments  shall  hereafter  be  known  as  officers  of  said 
corps  and  by  the  title  of  the  rank  held  by  them  therein,  and,  except 
as  hereinafter  specifically  provided  to  the  contrary,  the  provisions 
of  sections  26  and  27  of  the  act  of  Congi'ess  approved  February  2, 
1901.  *  *  *  ^YQ  hereby  extended  so  as  to  apply  to  the  Quarter- 
master Corps  in  the  manner  and  to  the  extent  to  which  they  now 
apply  to  the  Quartermaster's,  Subsistence,  and  Pay  Departments, 
*  *  * :  Provided  further.  That  no  details  to  fill  vacancies  in  the 
grade  of  colonel  in  the  Quartermaster  Corps  shall  be  made  until  the 
number  of  officers  of  that  grade  shall  have  been  reduced  by  three, 
and  thereafter  the  number  of  officers  in  that  grade  shall  not  exceed 
twelve;  and  no  details  to  fill  vacancies  in  the  grade  of  lieutenant 
colonel  in  the  Quartermaster  Corps  shall  be  made  until  the  number 
of  officers  of  that  gi-ade  shall  have  been  reduced  by  three,  and  there- 
after the  number  of  officers  of  that  grade  shall  not  exceed  eighteen ; 


DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE   GENEHAI  .  89 

and  no  details  to  fill  vacancies  in  the  grade  of  major  in  the  Quarter- 
master Corps  shall  be  made  until  the  number  of  otticers  of  that  grade 
shall  have  been  reduced  by  nine,  and  thereafter  the  numbei-  of  ollicers 
in  said  grade  shall  not  exceed  forty-eight;  and  no  details  to  till 
vacancies  in  the  grade  of  captain  in  the  Quartermaster  ("<>i-ps  shall 
be  made  until  after  the  number  of  ollicers  of  that  graele  shall  be 
reduced  by  twenty-nine,  and  thereafter  the  number  of  ollicers  of  said 
grade  shall  not  exceed  one  hundred  and  two;  and  whenever  the  sep- 
aration of  a  line  officer  of  any  grade  and  arm  from  the  Quartermaster 
Corps  shall  create  therein  a  vacancy  that,  under  the  terms  of  this 
proviso,  can  not  be  filled  by  detail,  such  separation  shall  operate  to 
make  a  permanent  reduction  of  one  in  the  total  number  of  officers  of 
said  grade  and  arm  in  the  line  of  the  Ai^my  as  soon  as  such  reduction 
can  be  made  without  depriving  any  officer  of  his  couiuiission : 
*  *  *  And  "provided  further^  That  for  the  purpose  of  carrying 
into  effect  the  provisions  of  this  section  the  President  is  hereby  au- 
thorized to  appoint,  by  and  with  the  advice  and  consent  of  the  Senate, 
the  Chief  of  the  Quartermaster  Corps  herein  provided  for  imme- 
diately upon  the  passage  of  this  act,  and  it  shall  be  the  duty  of  the 
said  chief,  under  the  direction  of  the  President  and  the  Secivtary 
of  War,  to  put  into  effect  the  provisions  of  this  section  not  less  than 
sixty  days  after  the  passage  of  this  act." 

3.  From  the  foregoing  it  appears  that  ultimately  the  authorized 
commissioned  strengtli  of  the  Quartermaster  Corps  in  the  grades  from 
colonel  to  captain,  both  inclusive,  is  to  equal  the  aggregate  commis- 
sioned strength  heretofore  authorized  in  those  grades  for  the  Quar- 
termaster's, Subsistence,  and  Pay  Departments,  less  the  following 
reductions,  viz:  Two  colonels,  2  lieutenant  colonels,  8  majors,  and  :i8 
captains;  and  that  these  reductions  are  to  be  effected  by  the  cessiition 
of  details — details  of  the  class  made  pursuant  to  the  provisions  of 
sections  26  and  27  of  the  act  of  February  2,  1901. 

4.  Concerning  section  3  of  the  act  of  August  24,  1912,  this  ofhce, 
under  date  of  September  3,  1912,  in  an  opinion  which  received  tiie 
approval  of  the  Acting  Secretary  of  War.  remarked,  in   part,  as 

follows: 

"In  determining  the  point  of  time  at  which  each  of  the  several 
provisions  of  the  section  became  or  may  become  effective,  a  distinction 
is  to  be  observed  between  provisions  of  a  nature  to  become  effective 
by  mere  operation  of  law  and  those  which  require  affirmative  execu- 
tive or  administrative  action  to  give  them  effect.  Pro\  isions  falling 
in  the  first  class  became  effective  immediately  upon  the  approval  of 
the  act,  while  those  of  the  second  class  may  not  be  placed  in  opera- 
tion until  60  days  after  the  approval  of  the  act,  exce])t  in  so  far  as 
the  final  proviso^f  the  section  requires  or  authorizes  ^'^.^'^^j''^^^"  ^'l'**" 
prior  to  the  expiration  of  the  60-(lay  period.     *  (b4-L»0.) 

In  the  same  opinion  the  proviso  requiring  the  temporary  cessation 
of  details  in  order  to  effect  the  reductions  mentione.l  above  was  dis- 
cussed in  the  following  terms :  •         •  i  i. 

u*  *  *  While  it  is  true  that  the  occurrence  of  vacancies  miglit 
be  hastened  by  executive  action,  the  number  of  vacancies  necessary 
to  effect  the  prescribed  reduction  is  bound  to  develop  in  the  course 
of  time  bv  reason  of  expirations  of  the  statutory  term  of  sei-vice  un- 
der detail  in  a  staff  corps  or  department,  retirements  by  operation 


90  DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

of  law,  deaths,  etc.  As  these  provisions  require  no  affirmative  execu- 
tive action  under  authority  of  the  new  law  to  give  them  effect,  but 
constitute  an  inhibition  upon  executive  action  under  specific  circum- 
stances, I  am  of  the  opinion  that  said  provisions  became  effective 
upon  the  approval  of  the  act,  and  that  no  details  to  fill  vacancies  in 
any  grade  in  the  Quartermaster  Corps  may  be  made  or  permitted  to 
become  effective  until  after  the  required  reduction  in  such  grade 
shall  have  been  accomplished.  Details  to  the  old  Quartermaster's, 
Subsistence,  and  Pay  Departments  may,  of  course,  no  longer  be 
made  or  permitted  to  become  effective." 

In  an  earlier  opinion,  dated  August  28,  1912,  this  office  held  that 
the  Quartermaster  Corps  provided  for  by  section  3  of  the  act  of 
August  24,  1912,  came  into  legal  existence  on  the  date  of  the  ap- 
proval of  the  act,  to  the  extent  that  no  detail  thereto  in  the  grade  of 
captain  may  be  made  or  permitted  to  become  effective  until  the  num- 
ber of  captains  in  the  consolidated  corps  shall  have  been  reduced 
below  102.  This  view  was  expressed  in  answer  to  an  inquiry  as  to 
whether  paragraph  27,  Special  Orders,  No.  177,  War  Department, 
July  29,  1912,  detailing  a  captain  of  infantry  to  fill  a  vacancy  to 
occur  on  August  31,  1912,  in  one  of  the  three  staff  departments 
affected  by  the  consolidation  should  be  permitted  to  stand — the  an- 
swer being  that  in  view  of  the  new  legislation  and  of  the  fact  that 
the  number  of  captains  in  the  consolidated  corps  exceeded  102,  the 
order  referred  to  must  be  held  to  be  inoperative.     (64—250.) 

5.  In  terms  the  section  providing  for  the  establishment  of  the 
Quartermaster  Corps  speaks  from  the  date  of  its  approval,  subject 
to  the  exceptions  indicated  in  the  concluding  proviso  of  the  section. 
As  the  provision  prohibiting  details  until  certaiij  reductions  shall 
have  been  accomplished  requires  no  affirmative  executive  action  to 
make  the  statutory  direction  effective,  I  am  of  the  opinion,  as  indi- 
cated above,  that  said  provision  is  not  within  the  purview  of  the 
final  proviso  of  the  section,  and  therefore  became  effective  at  once 
upon  the  approval  of  the  act — that  is,  on  August  24,  1912. 

6.  Section  27  of  the  act  of  February  2,  1901  (31  Stat.,  755),  which 
is  specifically  referred  to  in  the  section  here  under  consideration, 
reads  as  follows : 

"  That  each  position  vacated  by  officers  of  the  line,  transferred  to 
any  department  of  the  staff  for  tours  of  service  under  this  act,  shall 
be  filled  by  promotion  in  the  line  until  the  total  number  detailed 
equals  the  number  authorized  for  duty  in  each  staff  department. 
Thereafter  vacancies  caused  by  details  from  the  line  to  the  staff  shall 
be  filled  by  officers  returning  from  tours  of  staff  duty.  If  under  the 
operation  of  this  act  the  number  of  officers  returned  to  any  particu- 
lar arm  of  the  service  at  any  time  exceeds  the  number  authorized  by 
law  in  any  grade,  promotions  to  that  grade  shall  cease  until  the 
number  has  been  reduced  to  that  authorized." 

7.  It  thus  appears  that  in  the  ordinary  course  of  administration, 
when  the  commissioned  strength  of  line  and  staff  organizations  is 
being  maintained  at  the  maximum  authorized  by  law,  an  officer  re- 
lieved from  duty  under  detail  to  one  of  the  staff  departments  be- 
comes for  the  time  being  a  supernumerary  in  his  branch  and  grade 
unless  another  officer  is  at  the  same  time  detailed  therefrom  for  duty 
in  a  staff  department.  In  the  present  case  when  an  officer  is  relieved 
from  detail  in  any  one  of  the  three  departments  merged  into  the 


DIGEST   OF   OPINIONS  OF    THE    JUDGE   ADVOCATE   GENERAL.  91 

Quartermaster  Cprps  no  detail,  either  to  tlie  old  department  or  to 
the  new  corps,  can  be  made  until  the  required  reductions  shall  have 
been  accomplished.  The  result  is  that  the  officer  so  relieved  becomes 
a  supernumerary  officer  in  the  branch  and  grade  in  which  he  is  com- 
missioned ;  and  under  the  terms  of  the  last  sentence  of  section  27  of 
the  act  of  Februarj'^  2,  1901,  promotions  to  that  grade  and  brancli 
must  cease  until  the  number  of  officers  thenein  has  been  reduced  to 
the  number  authorized  by  law.  As  the  prohibition  against  making 
details  became  effective  on  August  24,  1912,  the  concluding  provisiciu 
of  section  27  of  the  act  of  February  2,  1901,  became  automatically 
operative  at  the  same  time  in  respect  of  all  cases  arising  through  thof 
relief  of  officers  who  have  been  under  detail  in  one  of  the  three 
departments  merged  into  the  new  corps  and  who  can  not  be  rephu-ed 
by  means  of  new  details  until  the  prescribed  reductions  shall  have 
been  effected. 

8.  By  way  of  specific  answer  to  the  question  presented  in  the 
memorandum  refen-ed  to  in  paragraph  1  hereof,  I  have  to  say  that 
in  my  opinion  that  part  of  section  3  of  the  act  of  Augu.st  21,  11*12, 
which  requires  the  absorption  of  a  certain  number  of  officers  ren- 
dered surplus  by  the  merging  of  the  Quartermaster's,  Subsistence, 
and  Pay  Departments  into  the  Quartermaster  Corps  became  effective 
on  the  date  of  the  approval  of  the  act— that  is,  on  August  24,  1912. 

E.  H.  Crowdek, 
Judge  Advocate  General. 

[Second  indorsement.] 

War  Department, 
Judge  Advocate  General's  Oi'Fice, 

October  16,  1912. 

To  The  Adjutant  General  : 

1  In  the  foregoing  letter,  dated  October  10,  1912,  the  Chief  of  the 
Quartermaster  Corps  requests  information  "As  to  the  proper  pro- 
cedure in  filling  vacancies  in  the  position  of  quartermaster  sergeant 
after  November  1,  the  date  fixed  for  the  consolidation  of  the  Quarter- 
master's, Subsistence,  and  Pay  Departments  to  beconie  effective 

2.  The  consolidation  thus  referred  to  is  prescribed  by  section  a  of 
the  Army  appropriation  act  of  August  24,  1912  (Public,  No.  338). 
That  section,  in  so  far  as  it  is  material  to  the  present  inquiry,  reads 

as  follows:  „   ,      ^       ,  ^      r^  i    *i 

"That  the  office  establishments  of  the  Quartermaster  (xenenil,  the 
Commissary  General,  and  the  Paymaster  General  of  the  Army  are 
hereby  consolidated  and  shall  hereafter  constitute  a  single  bureau 
of  the  War  Department,  which  shall  be  known  as  the  Quartenm.ster 
Corps,  and  of  which  the  Chief  of  the  Quartermast^er  Corps  created  by 
this  act  shall  be  the  head.  The  Quartermaster's,  Subsistence,  am 
Pay  Departments  of  the  Army  are  hereby  consolidated  into  and 
shall  hereafter  be  known  as  the  Quartermaster  Cori>s  of  the  A  m.y. 
*  *  *  The  noncommissioned  officers  now  known  as  post  <iiui  ter- 
master  sergeants  and  post  commissary  fr^^ants  shall  l^J';^«f  ^';;  '« 
known  as  luartermaster  sergeants;  *  *  *  ^"^^  ^%  ^f  "T '  " 
commisisoned  officers  *  *  *  shall  continue  to  h^^e  the  pay^, 
allowances,  rights,  and  privileges  now  allowed  him  by  law . 


92  DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE    GENEEAL. 

Provided  further^  That  such  duty  or  duties  as  are  now  required  by 
law  to  be  performed  by  any  officer  or  officers  of  the  Quartermaster's, 
Subsistence,  or  Pay  Departments  shall  hereafter  be  performed  by 
such  officer  or  officei*s  of  the  Quartermaster  Corps  as  the  Secretary  of 
War  may  designate  for  the  purpose ;     *     *     *." 

The  qualifications  and  methods  of  selection  and  appointment  of 
post  commissay  sergeaiits  and  posts  quartermaster  sergeants  have 
heretofore  been  determined  by  the  following  statutory  provisions, 
viz : 

"  The  Secretary  of  War  is  authorized  to  select  from  the  sergeants 
of  the  line  of  the  Army  who  shall  have  faithfully  served  therein  five 
years,  three  years  of  which  in  the  grade  of  noncommissioned  officers, 
as  many  commissary  sergeants  as  the  service  may  require,  not  to  ex- 
ceed one  for  each  military  post  or  place  of  deposit  of  subsistence 
supplies,  whose  duty  it  shall  be  to  receive  and  preserve  subsistence 
supplies  at  the  posts,  under  the  direction  of  the  proper  officers  of  the 
Subsistence  Department,  and  under  such  regulations  as  shall  be 
prescribed  by  the  Secretary  of  War.  *  *  *."  (Sec.  1142,  Rev. 
Stat.) 

"  That  the  Secretary  of  War  is  authorized  to  appoint,  on  the  recom- 
mendation of  the  Quartermaster  General,  as  many  post  quarter- 
master sergeants,  not  to  exceed  eighty,  as  he  may  deem  necessary  for 
the  interests  of  the  service,  said  sergeants  to  be  selected  by  examina- 
tion from  the  most  competent  enlisted  men  of  the  Army  who  have 
served  at  least  four  years  and  whose  character  and  education  shall  fit 
them  to  take  charge  of  public  property  and  to  act  as  clerks  and 
assistants  to  post  and  other  quartermasters.  Said  post  quartermaster 
sergeants  shall,  so  far  as  practicable,  perform  the  duties  of  store- 
keepers and  clerks  in  lieu  of  citizen  emplovees  *  *  *."  (Act  of 
July  5,  1884,  23_  Stat.,  109.) 

The  designation  of  the  commissary  sergeants  provided  for  in  sec- 
tion 1142,  Revised  Statutes,  was  changed  to  post  commissary 
sergeants  and  those  noncommissioned  officers  included  in  the  Subsist- 
ence Department  by  the  terms  of  section  17  of  the  act  of  February  2, 
1901,  and  the  authorized  number  of  post  quartermaster  sergeants  was 
incorporated  into  the  Quartermaster's  Department  by  section  16  of 
the  same  act  (31  Stat.,  751  and  752).  The  first  section  of  the  Army 
appropriation  act  of  August  24,  1912,  supra^  carries  appropriations 
"  for  pay  of  two  hundred  post  quartermaster  sergeants,  at  forty-five 
dollars  per  month  each,  *  *  *,"  and  "  for  pay  of  two  hundred 
and  seven  post  commissary  sergeants,  at  forty-five  dollars  per  month 
each,     *     *     *." 

3.  The  act  of  August  24.  1912,  does  not  specifically  provide  for  the 
repeal  of  any  portion  of  section  1142,  Revised  Statutes,  or  of  the  act 
of  July  5,  1884,  neither  does  the  former  act  in  terms  prescribe  the 
qualifications  and  methods  of  selection  and  appointment  of  quarter- 
master sergeants  in  the  Quartermaster  Corps.  I  have  discovered  no 
such  inconsistency  between  the  new  legislation  and  the  legislation 
relating  to  the  qualifications  and  methods  of  selection  and  appoint- 
ment of  post  quartermaster  sergeants  and  post  commissary  sergeants  as 
would  justify  me  in  holding  that  the  latter  is  repealed  by  implication. 
On  the  contrary,  as  after  the  consolidation  becomes  effective  quarter- 
master sergeants  will  be  liable  to  be  called  upon  to  perform  the  duties 
and  assume  the  responsibilities  of  either  or  both  of  the  old  classes  of 


I 


DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.  93 

noncommissioned  officers,  I  think  it  may  be  fairly  assiimefl  tliat  the 
legishitive  intention  was  that  new  appointees  to  tlie  j^osiliun  of  <|uar- 
termaster  sergeant  in  the  Quartermaster  Corps  should  meet  all  the 
requirements  of  the  laws  designed  to  secure  the  selection  of  properly 
qualified  post  quartermaster  sergeants  and  post  commis^^ary  ser- 
geants, respectively.  This  construction  would  continue  to  give  effect 
to  the  old  legislation  enacted  for  the  purpose  of  securing  competent 
noncommissioned  officers  in  the  supply  departments  merged  into  the 
new"  corps,  and  would  be  in  harmony  with  the  rule  that  rt-peals  by 
implication  are  not  favored  and  will  not  be  held  to  exist  if  there  is 
any  other  reasonable  construction. 

4.  For  the  reasons  stated  I  am  led  to  the  ojnnion  thai  aiit-r  the 
consolidation  recently  prescribed  becomes  efiective  section  1112  of 
the  Eevised  Statutes  and  the  act  of  July  5,  1884,  supm,  should  l>e 
given  effect  in  respect  of  the  qualifications  and  methods  of  selecting 
new  appointees  to  the  position  of  quartermaster  sergeant  in  the 
Quartermaster  Corps  by  observing  all  requirements  cominon  to  both 
statutes  or  found  in  one  with  no  corresponding  provision  in  the  other 
and  by  requiring  the  higher  qualification  and  observing  the  more 
restricted  field  of  selection  when  the  two  statutes  contain  dill'erent 

provisions  upon  the  subject. 

E.  H.  Crowukk, 
Judge  Advocate  General. 

[Second  indorsement.] 

War  Department, 
Judge  Advocate  General's  Office, 

Septemhei'  H,  J912. 

To  the  Secretary  of  War  : 

1  The  Chief  of  the  Quartermaster  Corps  submits  his  views  rela- 
tive to  the  construction  of  section  4  of  the  Army  appropriation  act 
of  Auo-ust  24,  1912,  providing  for  the  substitution  in  large  measure 
of  an  enlisted  force  for  the  Quartermaster  Corps  to  replace  the 
civilians  now  employed  in  that  corps  and  the  enlisted  men  now  on 
detail  on  extra  duty  in  said  corps,  with  request  that  the  opinion  ot 
this  office  be  obtained  regarding  certain  provisions  thereof. 

2.  Section  4  of  the  said  act  directs  that  as  soon  as  Pi-'j^^ticaWe  after 
the  creation  of  the  Quartermaster  Corps  "  not  to  exceed     4,0U0  civil- 
ian employees  of  that  corps,  receiving  a  monthly  compensation  of 
not  less  than  $30  nor  more  than  $175  ^^^^h   '  nof  zncW./^ 
employees  or  classes  of  employees  specified  "shal    be  iq  l^^^-^^J  1 
manently  by  not  to  exceed  an  equal  number  of  enlisted  "^»  «f  ^'J    . 
corps  "•  provides  for  the  enlistment  of  not  to  exceed  2.000  men  f..i 
saJd  co^p^to  replace  details  therein  for  extra  duty;  ami  f or    he  pur^ 
pose  of  the  act  authorizes  the  enlistment  of      '^^^  .f^.  ;'  '  .t,,  j    1 
men  of  the  several  grades  provided  for  with  pay  ^^^^he    o    csp  u 
ing  grades  in  the  Signal  Corps,  the  enlisted  force  so        1^^    ^^-; 
be'pSrmanently  attached  to  the  Qiiar  ermaster  (  '^H  <1  '^^  *       ^ 

accounted  for  as  a  ])art  of  the  enlisted  force  now  authoii/cfl  b>  .on. 
SsSn  di.'des\he  civilian  force  of  the  ^^^^^^^^^ 
two  classes:   (1)   Those  to  be  f  P^^f  ^^  by  enl i.t  d  m        «  ^ 

practlcaUe,  and  (2)  those  referred  to  as  ;^  ^l  \'  i,,,,,  the 
-excepted  from  the  provisions  ot  this  act.       llub  act  auuiou^t. 


94  DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENEEAL. 

enlistment  of  men  to  replace  those  within  the  former  class,  but  gives 
no  such  authority  in  respect  to  those  in  the  latter  class.  It  provides 
that  the  Secretary  of  War  may  fix  the  limits  of  age  within  which 
"  civilian  employees  who  are  actually  employed  by  the  Government 
-SA  hen  this  act  takes  effect,  and  who  are  to  be  replaced  by  enlisted  men 
under  the  terms  of  this  act,  may  enlist  in  the  Quartermaster  Corps," 
indicating  that,  as  to  those  included  within  the  requirement  to  be 
replaced  by  enlisted  men,  the  words  "  as  soon  as  practicable  "  mean 
something  more  than  a  replacement  as  vacancies  may  occur.  The 
act  further  provides  that  ^' nothing  in  this  section  shall  he  held  or 
construed  so  as  to  prevent  the  eTnployment  of  the  class  of  civilian 
employees  excepted  from  the  provisions  of  this  act^  or  the  continued 
employment  of  civilians  included  in  the  act  until  such  latter  em- 
ployees have  been  replaced  by  enlisted  men  of  the  Quartermaster 
Corps." 

3.  The  employees  referred  to  in  the  section  as  "  not  included  "  in 
the  requirement  for  replacement  "  as  soon  as  practicable,"  and  in  the 
proviso  as  "  excepted  from  the  provisions  of  this  act,"  are  described 
as  follows: 

"  Civil  engineers,  superintendents  of  construction,  inspectors  of 
clothing,  clothing  examiners,  inspectors  of  supplies,  inspectors  of 
animals,  chemists,  veterinarians,  freight  and  passenger  rate  clerks, 
civil-service  employees^  and  employees  of  the  classified  service^  em- 
ployees of  the  Army  transport  service  and  harbor-boat  service,  and 
such  other  employees  as  may  be  required  for  technical  work," 

When  the  bill  was  originally  introduced  the  underscored  words 
were  not  in  the  bill,  so  that  all  the  excepted  employees  were  those 
"  required  for  technical  work."  When  the  bill  passed  the  House  the 
words  "  employees  of  the  classified  service  "  had  been  added  thereto, 
and  later  the  words  "  civil-service  employees  "  were  added.  In  other 
respects  the  legislation  as  passed  agrees  substantially  with  the  bill 
as  originally  introduced. 

4.  In  considering  this  section  the  question  arises  whether  it  deals 
with  persons  as  "  excepted  from  "  its  provisions  or  with  the  positions 
filled  by  the  persons.  It  provides  for  replacing  "  civilian  employees  " 
by  enlisted  men,  "  not  includinq  "  those  described  and  referred  to  in 
the  proviso  "  as  excepted  from  the  provisions  "  of  the  act ;  and  if  the 
section  be  construed  as  excepting  persons  and  not  positions^  then 
when  a  position  within  the  excepted  classes  becomes  vacant  m  the 
ordinary  course,  the  act  would  authorize  the  position  to  be  filled  by 
an  enlisted  man,  subject  to  the  proviso  that  nothing  in  the  section 
"  shall  be  construed  so  as  to  prevent  the  employment  of  the  classes 
of  civilian  employees  excepted  from  the  provisions  of  this  act " ;  that 
is,  the  proviso  would  reserve  to  the  department  the  discretion  to  em- 
ploy civilians  to  fill  vacancies  in  the  excepted  classes.  So  construed 
the  proviso  would  limit  the  operation  of  the  requirement  to  fill 
vacancies  as  they  occur  by  enlisted  men  within  the  limit  of  the  num- 
ber authorized  by  reserving  to  the  department  authority  to  employ 
civilians  if  deemed  necessary  to  fill  the  vacancy  of  any  employee  of 
the  excepted  classes.  This  construction  would  give  scope  for  the 
operation  of  the  act  not  only  as  to  the  number  authorized,  but  also 
as  to  the  apportionment  of  the  authorized  enlisted  strength  in  the 
several  grades;  that  is,  15  master  electricians,  600  sergeants,  1,005 
(should   be   1,000)    sergeants,    650    corporals,   2,500    privates    (first 


DIGEST  OV   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.  95 

class),  l,iyO  privates,  and  45  cooks.  If,  on  the  other  hand,  the  sec- 
tion be  regarded  as  excepting  positions  and  not  persons,  then  there  is 
no  authority  to  employ  enlisted  men  except  as  to  the  classes  not  ex- 
cepted from  the  operation  of  the  section ;  and  as  the  excepted  clas.ses 
include,  along  with  the  persons  required  for  technical  work,  ''civil- 
service  employees  and  employees  of  the  classified  service,"  thus  in- 
cluding nearly  all  of  the  employees  of  higher  grades,  the  act  would 
be  m  large  part  moperative  for  want  of  persons  or  positions  in  re- 
spect  to  which  it  can  operate.  Moreover,  as  practically  all  of  tlie 
higher  salaries  would  pertain  to  the  positions  excepted,  the  provision 
for  the  higher  grades  among  the  enlisted  men  authorized  would  he 
unnecessary,  since  all  of  the  positions  of  the  classes  calling  for  the 
higher  grades  would  be  excepted  from  the  operation  of  the  act.  Fur- 
thermore, this  construction  would  render  the  proviso  wholly  unneces- 
sary, since,  if  the  positions  are  excepted  from  the  operation  of  this 
section,  then,  of  course,  they  would  continue  to  be  filled  as  civil  posi- 
tions, there  being  no  authority  to  fill  them  by  enlistment. 

5.  I  am  therefore  of  opinion  that  Congress  intended  to  except  the 
persons  described  from  the  requirement  that  they  should  be  replaced 
as  soon  as  practicable  by  enlisted  men,  and  that  Congress  had  no 
intention  to  require  the  maintenance  of  the  positions  as  civil  posi- 
tions. Realizing,  however,  that  the  character  of  service  required 
as  to  some  of  the  places  at  least  might  make  it  impracticable  to  fill 
them  by  enlisted  men,  Congress,  by  the  proviso,  reserved  to  the  de- 
partment authority  to  employ  civilians  to  fill  vacancies  of  the  ex- 
cepted classes  instead  of  filling  them  by  enlisted  men,  as  would  be 
required  in  the  absence  of  the  proviso. 

6.  In  the  second  paragraph  the  Chief  of  the  Quartermaster  Corps 
enumerates  certain  classes  of  employees,  "  such  as  assistant  wagon 
masters,  cargadoi*s,  packers  (with  pack  trains),  teamsters,  laborers 
(not  classified),  scavengers,  etc.,"  none  of  which  appear  to  belong  to 
the  classes  excepted  from  the  operation  of  the  section.  I  concur 
in  his  view  that  these  employees  fall  within  the  operation  of  the 
statute;  but  his  recommendation  in  regard  to  the  rules  of  enlistment 
to  be  established  by  the  Secretary  of  War  is  one  pertaining  to  ad- 
ministration and  does  not  appear  to  call  for  any  remark  or  recom- 
mendation by  this  office. 

7.  In  the  third  and  fourth  paragraphs  the  Chief  of  the  Quarter- 
master Corps  draws  distinction  between  certain  employees  required 
for  technical  work,  whom  he  refers  to  as  "  excluded  from  enlistment " 
and  as  holding  positions  "  which  will  have  to  be  filled  in  future,  as 
in  the  past,  through  the  civil  service,"  and  other  employees  described 
in  the  exception  as  "  civil-service  employees  and  employees  of  the 
classified  service,"  in  respect  to  which  he  thinks  the  yaeancies  as  they 
occur  may  properly  be  filled  by  enlisted  men  within  the  limits  au- 
thorized.'  The  language  of  the  section  does  not  admit  of  any  dis- 
tinction between  the  positions  requiring  technical  qualifications  and 
those  in  the  civil  or  classified  service,  all  being  equally  excepted  from 
the  requirement  of  the  section  regarding  their  replacement  by  en- 
listed men  as  soon  as  practicable.  Whatever  distinction  may  be  i-e- 
quired  in  the  administration  of  the  statute  will  have  to  be  made  by 
regulation  under  the  authority  to  continue  the  "  employment  of  the 
class  of  civilian  employees  excepted  from  the  ]M-ovisions"  of  the  net. 
I  am  of  opinion  that  mider  the  authority  of  this  proviso  the  Secre- 


96  DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEEAL. 

tai-y  of  War  can  properly  direct  that  as  to  emploj^ees  required  for 
technical  work  of  the  classes  specified  vacancies  as  they  occur  will 
be  filled  in  future,  as  in  the  past,  through  the  civil  service;  but  as 
to  other  employees  within  the  excepted  classes,  described  in  the  ex- 
ception as  "  civilian  employees  and  employees  of  the  classified  serv- 
ice," the  vacancies  will  be  filled  by  enlisted  men  within  the  limit  of 
the  number  of  enlisted  men  authorized. 

E.  H.  Crowder, 
Judge  Advocate  General. 


October  18,  1912. 
From :  The  Judge  Advocate  General. 
To:  The  Adjutant  General. 
Subject:  Additional  members  of  the  General  Staff  Corps. 

1.  In  a  communication  of  the  10th  instant  The  Adjutant  General 
of  the  Army  states  that  the  Secretary  of  War  desires  the  opinion  of 
this  office  as  to  "  whether  or  not  the  Chief  of  the  Coast  Artillery 
Corps  and  the  Chief  of  the  Division  of  Militia  Affairs  are  members 
of  the  General  Staff  Corps,  in  view  of  the  provisions  of  section  5  of 
the  act  of  August  24,  1912,  making  appropriations  for  the  support 
of  the  Army,  which  limits  the  number  of  general  officers  of  the  corps 
to  two,  and  of  section  8  of  said  act,  which  repeals  all  laws  and  parts 
of  laws  so  far  as  they  are  inconsistent  with  the  terms  of  said  act." 
The  question  is  presented  with  sufficient  definiteness  to  admit  of  an 
intelligent  discussion  and  a  satisfactory  conclusion,  without  the 
necessity  of  further  restatement  for  those  purposes. 

2.  The  office  of  Chief  of  Artillery  was  created  by  section  6  of  the 
act  of  February  2,  1901  (31  Stat.,  749),  which  also  prescribes  that 
that  officer  shall  serve  on  the  staff  of  the  general  officer  commanding 
the  Army.  The  act  of  Congi^ess  approved  February  14,  1903  (32 
Stat.,  831),  established  the  office  of  Chief  of  Staff  and  the  General 
Staff  Corps,  and  prescribed  inter  aim  the  powers  and  duties  of  said 
office  and  the  composition  and  duties  of  said  corps.  Section  3  of 
said  act  provides: 

"That  the  General  Staff  Corps  shall  consist  of  one  Chief  of  Staff 
and  two  general  officers,  all  to  be  detailed  by  the  President  from 
officers  of  the  Army  at  large  not  below  the  grade  of  brigadier  gen- 
eral, four  colonels,  six  lieutenant  colonels,  and  twelve  majors,  all 
detailed  from  the  corresponding  grades  in  the  Army  at  large,  under 
such  rules  for  selection  as  the  President  may  prescribe ;  twenty  cap- 
tains, to  be  detailed  from  officers  of  the  Army  at  large  of  the  grades 
of  captain  or  first  lieutenant,  who  while  so  serving  shall  have  the 
rank,  pay,  and  allowances  of  captain  mounted.  All  officers  detailed 
in  the  General  Staff  Corps  shall  be  detailed  therein  for  periods  of 
four  years  unless  sooner  relieved.  While  serving  in  the  General 
Staff  Corps  officers  may  be  temporarily  assigned  to  duty  with  any 
branch  of  the  Army.  Upon  being  relieved  from  duty  in  the  General 
Staff  Corps  officers  shall  return  to  the  branch  of  the  Army  in  which 
they  hold  a  permanent  commission,  and  no  officer  shall  be  eligible 
to  a  further  detail  in  the  General  Staff  Corps  until  he  shall  have 
served  two  years  with  the  branch  of  the  Army  in  which  commis- 
sioned, except  in  case  of  emergency  or  in  time  of  war." 


DIGEST   OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL.  97 

Section  5  of  the  same  act  also  provides : 

"  That  the  Chief  of  Artillery  shall  hereafter  serve  as  an  additioiuil 
member  of  the  General  Staff."' 

This  latter  provision  appearing  in  the  act  creating  tlie  General 
Staff  Corps  was  repeated  ipsissimis  verbis  in  section  5  of  the  act  of 
March  3,  1903  (32  Stat,  1071),  and  appears  in  its  final  form  in  sec- 
tion 2  of  the  act  of  January  5,  1907  (34  Stat.,  8G1).  as  follows: 

"That  the  Chief  of  Artillery  or  Chief  of  Coast  Artillerv  shall  he 
an  additional  member  of  the  General  Stafl"  Corps  and  his  duties  sliall 
be  as  prescribed  by  the  Secretary  of  War." 

Such  was  the  state  of  the  law  defining  the  relation  of  tlie  office  of 
Chief  of  Artillery  and  of  that  officer  to  the  General  Staff  Corps  on 
the  24th  day  of  August,  1912,  when  the  act  making  appropriation 
for  the  support  of  the  Army  for  the  present  fiscal  3'ear  Ijecame  law. 

3.  Section  6  of  said  act  provides  as  follows: 

"  That  hereafter  the  General  Staff  Corps  shall  consist  of  two  gen- 
eral officers,  one  of  whom  shall  be  the  Chief  of  Staff,  four  colonels, 
six  lieutenant  colonels,  twelve  majors,  and  twelve  captains  and  first 
lieutenants,  all  of  whom  shall  be  detailed  from  the  Ai-my  at  large  in 
the  manner  and  for  the  periods  prescribed  by  law:  P^'o/^ided,  That 
hereafter,  except  as  otherwise  provided  herein,  when  any  officer  shall, 
under  the  provisions  of  section  26  of  the  act  of  Congress  ap])ro\ed 
February  2,  1901,  be  appointed  to  an  office  above  that  of  colonel,  his 
appointment  to  said  office  and  his  acceptance  of  the  appointment  shall 
create  a  vacancy  in  the  arm,  staff  corps,  or  staflt*  department  from 
which  he  shall  be  appointed,  and  said  vacancy  shall  be  filled  in  the 
manner  prescribed  by  existing  law,  but  he  shall  retain  in  said  arm, 
staff  corps,  or  staff  department  the  same  relative  position  he  would 
have  held  if  he  had  not  been  appointed  to  said  office,  and  he  shall 
return  to  said  relati^^e  position  upon  the  expiration  of  said  appoint- 
ment to  said  office  nnless  he  shall  be  reappointed  thereto;  and  if 
under  the  operation  of  this  proviso  the  number  of  officers  of  any  par- 
ticular grade  in  any  arm,  staff  corps,  or  stafl'  department  shall  at 
any  time  exceed  the  number  authorized  by  law,  no  vacancy  occurring 
in  said  grades  shall  be  filled  until  after  the  total  number  of  officers 
therein  shall  have  been  reduced  below  the  number  authorized  by  law, 
but  nothing  in  this  proviso  shall  be  held  to  apply  in  the  case  of  any 
officer  who  now  holds  a  four-year  appointment  to  an  office  with  rank 
above  that  of  colonel,  and  whose  return  to  the  relative  position  he 
would  have  held  if  he  had  not  been  appointed  to  said  office  is  not 
possible  under  existing;  law." 

Said  act  also  prescribes  in  its  eighth  and  concluding  section : 
"  That  all  laws  and  parts  of  laws,  so  far  as  they  are  inconsistent 
with  the  terms  of  this  act,  be  and  they  are  hereby  repealetl/' 

4.  The  question  presented,  then,  requires  that  it  l)e  determined,  as 
a  result  of  the  application  of  the  rules  of  statutory  construction, 
whether  the  recent  act,  which  prescribes  anew,  in  the  section  qiu)ted, 
supra,  the  constitution  of  the  General  Stafl'  Cori)s,  including  the 
number  of  general  officers  thereof  and  without  mention  of  additional 
members,  and  a  repeal  of  all  prior  inconsistent  laws,  operates  thereby 
to  repeal  expressly  or  by  fair  implication  the  provisions  of  law  there- 
tofore existing  and  constituting  the  Chief  of  Coast  Artillery  an 
additional  member  of  said  corps. 

93668°— 17 7 


98  DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

5.  The  repealing  effect  of  section  8  of  the  recent  act  may,  I  think, 
be  ascertained  and  stated  without  difficulty.  Such  general  repealing 
clauses  are  of  common  use  in  legislation  which  is  not  new  in  charac- 
ter, and  which  is  but  part  of  a  system  of  legislation  upon  a  common 
subject  matter.  Such  a  clause  simply  implies  a  legislative  assump- 
tion that  the  new  law  may  to  some  extent  be  repugnant  to  some  parts 
of  the  antecedent  legislation  on  the  same  subject.  If  this  be  so, 
there  is  a  repeal  to  the  extent  of  the  irreconcilable  difference,  but  no 
further ;  and  this  would  be  true  by  implication,  regardless  of  the  ex- 
istence of  such  clause.  It  is  a  general  rule,  therefore,  that  the  inser- 
tion of  a  general  repealing  clause  adds  nothing  to  the  repealing  effect 
of  the  statute.  Section  8,  then,  of  the  recent  act  does  not  serve  in 
and  of  itself  to  affect  in  any  wise  the  question  of  the  repeal  of  the 
antecedent  provision  that  the  Chief  of  Coast  Artillery  shall  be  an 
additional  member  of  the  General  Staff  Corps;  nor  does  the  repealing 
clause  in  question,  taken  in  conjunction  with  section  5  of  the  same 
act,  add  am^thing  to  the  repealing  effect  that  the  latter  section  in 
and  i)t  itself  may  have  upon  the  antecedent  provision  referred  to. 
Such  provision  is  nowhere  expressly  repealed.  It  has  been  repealed, 
if  at  all,  by  implication ;  that  is,  by  the  legislative  reconstitution  of 
that  corps  in  section  5  of  the  recent  act  which  fails  or  omits  to  pre- 
scribe or  provide  for  the  additional  membership  in  question. 

6.  Repeals  by  implication  are  not  favored.  Acts  should  be  con- 
strued, if  possible,  so  that  all  may  be  operative.  However,  subsequent 
legislation  repeals  previous  inconsistent  legislation  upon  the  same 
subject  and  for  similar  purposes,  not  only  on  the  theory  of  legisla- 
tive intention,  but  because  contradictions  can  not  stand  together.  The 
intention  to  repeal,  however,  can  not  be  assumed,  nor  a  repealing 
effect  admitted  unless  the  inconsistency  is  unavoidable,  and  then  only 
to  the  extent  of  the  repugnance..  If  it  is  clear  that  in  the  present 
instance  the  mere  affirmative  eniuneration  in  section  5  of  the  recent 
act  of  those  officers  of  the  several  grades  constituting  the  General 
Staff  Corps  is  sufficiently  strong  to  imply  a  negative,  and  thus  fur- 
nish a  rule  of  exclusion,  or  if  it  plainly  appears  to  have  been  the 
purpose  of  Congress  in  said  section  to  cover  all  antecedent  acts  pre- 
scribing the  composition  of  that  corps,  and  thus  give  expression  to 
the  whole  law  on  the  subject,  or  if  said  section  is  in  any  other  manner 
irreconcilably  repugnant  to  the  antecedent  separate  statutes  pre- 
scribing the  additional  membership,  the  existence  of  such  conditions 
must  attribute  a  repealing  effect  to  said  section;  otherwise,  and  so 
long  as  different  functions  and  purposes  can  be  assigned  to  the  several 
separate  statutes,  all  must  stand. 

7.  Of  all  branches  of  the  Army  the  Coast  Artillery  Corps  is  the 
only  one  organized  with  a  statutory  chief.  The  statute  originating 
the  office  of  Chief  of  Artillery  placed  that  officer  upon  the  staff  of 
the  general  commanding  the  Army.  The  statute  which  established 
the  office  of  the  Chief  of  Staff  and  the  General  Staff  Corps  and  pre- 
scribed that  the  Chief  of  Artillery  should  be  an  additional  member 
of  said  corps  seems  to  be  but  a  logical  legislative  continuation  of  the 
same  relation.  The  relation  thus  established  by  statute  has  been 
maintained  by  two  legislative  repetitions  (vide,  act  March  3,  1903, 
32  Stat.,  1021-2 ;  sec.  2,  act  January  25,  1907,  34  Stat.,  861)  ;  such  rep- 
etitions, though  made  necessary  by  other  considerations,  serve,  in  and 
of  themselves,  to  furnish  suggestive  force  of  fixedness  of  legislative 


DIGEST   OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL.  99 

policy  and  intention.  It  is  believed  that  the  legislative  intention  in 
making  the  Chief  of  Artillery  an  additional  member  of  the  General 
Staff  Corps  was,  upon  the  one  hand,  to  supplement  that  corps  with 
that  officer,  who  by  virtue  of  his  office  possesses  a  general  and  par- 
ticular knowledge  of  his  branch,  in  order  that  the  General  Staff 
Corps,  thus  availing  itself,  may  the  better  perform  its  duties  toward 
that  branch,  which  differs  largely  in  military  functions  and  character 
from  the  other  branches  of  the  Army,  and  to  the  whole  Army  as  well ; 
and,  upon  the  other  hand,  to  establish  the  correct  military  and  admin- 
istrative relation  of  this  office  and  officer  to  the  Chief  of  Staff.  Such 
intention  is  deducible  not  only  from  a  review  of  tlie  legishition  upon 
the  subject,  but  becomes  particularly  plain  in  the  light  of  tlie  practical 
administration  of  the  office  in  question  under  the  statutory  status. 
The  primary  purpose  of  Congress  was  not,  therefore,  to  increase  the 
personnel  of  the  General  Staff  Corps  as  such,  nor  the  number  of 
general  officers  to  serve  therewith,  nor  does  the  relation  thus  estab- 
lished decrease  the  number  of  officers  available  for  actual  service  with 
troops.  In  such  respects  those  provisions  of  law  making  the  Chief  of 
Artillery  an  additional  member  of  the  General  Staff  Corps  appear 
to  have  no  community  of  purpose  with  the  section  in  the  recent  act 
reconstituting  that  corps. 

8.  It  is  true  that  in  section  5  of  the  recent  act  Congress  has 
prescribed  for  the  constitution  of  the  General  Staff  Corps  a  number 
of  officers  which,  in  the  grades  of  general  officer  and  of  captain  and 
first  lieutenant  differs  from  the  quota  of  those  respective  grades  pi*e- 
scribed  by  the  act  establishing  that  corps.  But  it  has  done  so  in 
affirmative  language,  without  the  use  of  words  of  negation  or  ex- 
clusion. Upon  general  principles  a  statute  in  affirmative  terms,  with- 
out negative  words  or  words  of  exclusion,  will  not  repeal  existing 
statutes  upon  the  same  subject  matter  unless  there  is  unavoiilable 
repugnance.  Had  Congress  intended  to  exclude  the  additional  mem- 
bership of  the  Chief  of  Coast  Artillery,  it  would  have  been  easy  to 
do  so  by  the  use  of  the  simplest  words  of  negation  and  exclusion 
without  even  destroying  the  affirmative  form.  I  feel  satisfied  that 
the  mere  enumeration  of  the  officers  constituting  the  General  Staff 
Corps  in  the  recent  act  is  not  sufficient  to  take  the  present  instance 
from  under  the  application  of  the  general  rule,  and  that  to  permit 
such  an  exclusive  interpretation  of  mere  numbers  to  ])revail  over  the 
general  intention  of  the  provision  will  not  be  justified,  in  view  of 
the  antecedent  legislation  upon  the  same  subject  matter,  but  with  a 
different  purpose  and  function,  and  of  the  other  reasons  advanced 
herein. 

9.  If  section  5  of  the  recent  act  clearly  covers  the  whole  subject 
matter  of  all  antecedent  acts  respecting  the  composition  of  the  Gen- 
eral Staff  Corps — that  is,  if  it  plainly  appears  to  have  been  the 
purpose  of  Congress  to  give  expression  therein  to  the  whole  law  on 
the  subject — then  it  must  be  held  that  all  such  antecedent  acts  be- 
come repealed  by  necessary  implication.  The  said  section,  after  pre- 
scribing what  officers  shall  constitute  the  General  Staff  Corps,  pro- 
vides that  all  of  them  "  shall  be  detailed  from  the  Army  at  hirge  in 
the  manner  and  for  the  periods  prescribed  by  law."  It  presci-il)es 
no  rules  governing  the  methods  of  detail,  but  evidently  reverts  for 
such  terms,  in  part  at  least,  to  the  old  section  establishing  the  (Jen- 


100        DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEBAL. 

eral  Staff  Corps.  The  recent  section,  therefore,  does  not  repeal  by 
substitution  the  old  section  prescribing  the  constitution  of  the  Gen- 
eral Staff  Corps,  but  has  reference  throughout  to  the  officers  detailed 
to  constitute  that  corps.  I  am  therefore  fairly  convinced  that  the 
recent  act,  wherein  it  prescribes  the  constitution  of  the  General  Staff 
CorpSj  does  not  intend  to  cover  the  entire  composition  of  that  corps, 
but  only  so  much  of  it  as  consists  of  officers  who  are  detailed  thereto, 
excluding  from  its  purview  those  officers  whose  relation  thereto  is 
based  upon  a  status  fixed  virtute  officii. 

10.  I  have  chosen,  for  convenience  sake,  to  discuss  first  the  ques- 
tion as  it  relates  to  the  Chief  of  Coast  Artillery.  The  same  question 
is  propounded  as  regards  the  additional  membership  of  the  Chief 
of  the  ^Division  of  Militia  Affairs. 

The  business  and  affairs  pertaining  to  the  militia  were  transacted 
in  the  office  of  The  Adjutant  General  prior  to  February  12,  1908; 
upon  that  date  the  Acting  Secretary  of  War,  by  formal  order,  created 
in  the  office  of  the  Secretary  of  War  a  division  to  be  known  as  that 
of  militia  affairs,  vested  it  with  the  transaction  of  all  business  per- 
taining to  the  militia,  and  specifically  defined  its  jurisdiction.  By 
General  Orders  141,  July  25,  1910,  the  Acting  Secretary  of  War 
directed  that  under  the  provision  of  paragrapli  775,  Army  Regula- 
tions, the  Chief  of  the  Division  of  Militia  Affairs  report  to  the  Chief 
of  Staff,  who  has  supervisory  power  over  all  matters  arising  in  the 
execution  of  the  acts  of  Congress  and  Executive  regulations  made  in 
pursuance  thereof  relating  to  the  militia.  Such  was  the  intimate 
administrative  relation  between  the  chief  of  this  division  and  the 
Chief  of  Staff  when  Congress,  in  the  act  of  March  3,  1911  (36  Stat., 
1037),  gave  statutory  recognition  to  the  former  office  and  fixed  its 
relation  to  the  office  of  the  Chief  of  Staff  and  to  the  General  Staff' 
Corps  by  providing : 

"  That  hereafter  the  Chief  of  the  Division  of  Militia  Affairs,  office 
of  the  Chief  of  Staff,  shall  be  detailed  from  the  general  officers  of 
the  line  of  the  Army,  and  while  so  serving  shall  be  an  additional 
member  of  the  General  Staff  Corps." 

The  general  purpose  and  intention  of  the  above  provision  were  in 
evident  recognition  of  the  general  movement  for  the  improvement 
of  the  militia  and  of  the  legislative  and  administrative  activity  to- 
ward bringing  that  force  into  more  intimate  relation  and  coordina- 
tion with  the  War  Department  and  the  Regular  Establishment. 
The  specific  purpose  was,  as  in  the  case  of  the  Chief  of  Coast 
Artillery,  to  supplement  the  General  Staff  Corps  by  that  officer  who 
represented  the  connection  between  the  Regular  Establislimenfc  upon 
the  one  hand  and  the  militia  upon  the  other,  and  who,  because  of  his 
facility  for  acquiring  special  loiowledge  of  this  important  branch 
of  national  defense  and  because  of  his  official  relation  to  the  militia, 
could  the  better  accomplish  his  own  functions  as  chief  of  the  division, 
the  more  effectively  aid  the  General  Staff  in  all  questions  affecting 
the  relation  of  the  militia  to  the  department,  and  thus  contribute  to 
the  cooperation  and  coordination  desired.  Upon  the  other  hand,  its 
specific  purpose  was  also  to  fix  the  correct  military  and  administra- 
tive relation  of  the  office  and  officer  to  the  Chief  of  Staff.  Such  be- 
ing the  general  and  special  purpose  of  the  statute  in  making  the 
Chief  of  the  Division  of  Militia  Affairs  an  additional  member  of  the 


DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       101 

General  Staff  Corps,  analogous  in  all  respects  to  that  of  similar 
previous  legislation  in  the  case  of  the  Chief  of  Coast  Artillery,  the 
reasoning  advanced  in  the  above  discussion  in  the  case  of  the  latter 
officer  is  equally  applicable  and  controlling  in  considering  the  rela- 
tion of  the  Chief  of  the  Militia  Di\asion  to  the  General  Staff  Corps. 
So,  too,  in  considering  the  question  as  respects  botli  oliicers,  1  can  not 
disreo-ard  the  fact,  which  strengthens  both  cases,  that  Congress  eight 
years  after  having  made  the  Chief  of  Coast  Artillery,  as  such,  an 
additional  member  of  the  General  Staff  Corps  created  and  for  similar 
reasons  another  additional  member  of  that  corps  by  virtue  of  his 
office,  which  fact,  coupled  with  the  presumption  in  favor  of  the  con- 
tinuance of  a  relation  once  legislatively  established,  furnishes  .str«)ng 
assurance  in  both  cases  of  a  fixed  legislative  intention  and  policy. 

11.  I  am  satisfied,  in  view  of  the  reasons  hereinbefore  advanced, 
that  by  fair  construction  some  office  and  function  can  be  assigned 
to  the  statutes  providing  that  the  two  officers  in  ([Uestion  shall  l)e 
additional  members  of  the  General  Staff  Corps,  as  well  as  to  the 
recent  section  in  question  prescribing  the  constitution  of  said  corps, 
without  derogation  from  any  of  them.  The  purpose  of  the  former 
I  have  already  sufficiently  indicated,  and  the  ])urpose  of  the  latter 
is,  by  reducing  the  detailed  members  of  the  General  Staff  Corps, 
to  render  the  officers  thus  relieved  available  for  service  where,  as 
Congress  deemed,  they  will  be  of  greater  use.  Under  such  circum- 
stances all  the  statutes  must  stand. 

12.  I  there'fore  conclude  that  the  provisions  of  section  5  of  the  act 
approved  August  24,  1912,  making  appropriations  for  the  siipi»ort 
of  the  Army  for  the  present  fiscal  year,  do  not  affect  the  relations  of 
the  Chief  of  Coast  Artillery  and  tlie  Cliief  of  the  Di^^sion  of  Militia 
Affairs  to  the  General  Staif  Corps,  and  that  each  of  these  functu)n- 
aries  still  is,  by  virtue  of  his  office,  an  additional  member  of  that 
corps.    The  question  submitted  is  answered  accordingly. 

E.  H.  Crowdkr, 
Judge  Advocate  General. 


BULLETIN   1. 

[Bulletin  No.  25  is  the  las't  of  the  series  of  1912.] 

Bulletin  1  WAR  DEPARTM:ENT, 

No.  1.     J  ~        Washington,  Jam^uary  20,  1913. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  period  from  October  1  to  December  31,  1912, 
inclusive,  and  digests  of  certain  decisions  of  the  Comptroller  of  the 
Treasury  and  opinions  of  the  Attorney  General  are  published  for 
the  information  of  the  service  in  general. 

Bulletins  similar  to  this  one  will  hereafter  be  issued  monthly  at 
the  end  of  each  calendar  month  covering  opinions  and  decisions  for 
said  month. 

[1931376  B— A.  G.  O.] 

By  qrder  of  the  Secretary  of  War  : 

LEONARD  WOOD, 

Major  General,  Chief  of  Staff. 
Official  : 

GEO.  ANDREWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ABSENCE:  Leaves  of,  to  nurses  in  the  Army  Nurse  Corps;  commutation 
of  subsistence  and  cumulative  leave. 

The  act  of  March  23,  1910  (36  Stat.,  249),  which  fixes  the  rates 
of  pay  of  the  Army  Nurse  Corps,  provides  that : 

"All  female  nurses  shall  hereafter  be  entitled,  *  *  *  to  cumu- 
lative leave  of  absence  with  pay  at  the  rate  of  thirty  days  for  each 
calendar  year  of  service  in  said  corps." 

Appropriation  is  made  in  the  Army  appropriation  act  of  August 
24,  1912  (37  Stat.,  578),  for  payments  "of  the  regulation  allowances 
for  commutation  in  lieu  of  rations  to  *  *  *  male  and  female 
nurses  on  leave  of  absence." 

A  female  nurse  of  the  Army  Nurse  Corps  was  absent  on  leave  for  72 
days,  at  the  end  of  which  time  she  applied  for  and  received  her  dis- 
charge from  the  Nurse  Corps.  Held,  that  if  at  the  time  of  said 
discharge  she  was  entitled  to  cumulative  leave  for  the  period  stated, 
commutation  of  subsistence  for  such  period  might  be  allowed  her 
at  the  rate  specified  in  the  Army  Regulations. 

(6-227.2,  J.  A.  G.,  Nov.  30,  1912.) 
102 


DIGEST  OF   OPINIONS  OF   THE    JUDGE   ADVOCATE   GENERAL.        103 

APPROPillATIGNS :  Covering  the  surplus  of  permanent  appropriations 
into  the  Treasury;  International  Waterways  Commission,  appropria- 
tion for  in  the  act  of  March  4,  1911. 

Section  4  of  the  river  and  harbor  act  of  June  13,  1902  (32  Stat., 
373),  prescribed  the  organization  and  duties  of  the  International 
Waterways  Commission,  and  for  the  purpose  of  paying  its  sahiries 
and  expenses,  authorized  the  Secretary  of  War  to  expend  from  the 
amounts  theretofore  appropriated. 

«  *  *  *  fQj.  ^]^g  Saint  Marys  River  at  the  Falls,  the  sum  of 
twenty  thousand  dollars,  or  so  much  thereof  as  may  be  necessary  to 
pay  that  portion  of  the  expenses  of  said  commission  chargeable  to 
the  United  States." 

Subsequently,  appropriations  were  made  annually  for  "  continuing 
the  work  of  investigation  and  report"  of  said  commission,  the  la.st 
one  being  that  contained  in  the  sundry  civil  appropriation  act  of 
August  24,  1912  (37  Stafe,  448),  which  appropriated  a  sum  of  money 
"  for  continuing  until  December  thirty-first,  nineteen  hundred  and 
twelve,"  such  investigation  and  report,  and  provided  for  a  report  to 
Congress  at  its  next  session.  Section  10  of  the  act  of  March  4,  1909 
(35  Stat.,  1027),  required  the  Secretary  of  the  Treasury  to  cause  all 
unexpended  balances  of  appropriations  which  remained  on  the  books 
of  the  Treasury  on  the  first  day  of  July,  1904,  except  permanent 
specific  appropriations  and  certain  others  mentioned,  to  be  covered 
into  the  Treasury,  and  that  for  such  purpose  no  appropriation  made 
prior  to  said  date  should  be  regarded  as  a  permanent  specific  appro- 
priation unless  by  its  terms  it  was  made  available  until  expended. 
Held,  that  the  act  of  March  4,  1909,  caused  the  approj^riation  tlicre- 
tofore  made  available  for  the  commission  by  act  of  June  13,  1902, 
to  be  covered  into  the  Treasury,  so  that  the  same  is  not  now  availahlo 
for  the  purposes  of  said  commission.  Held  further,  that  the  appro- 
priation in  the  sundry  civil  act  of  March  4,  1911  (36  Sttit.,  1407),  for 
continuing  the  work  and  investigation  of  the  commission  is  classed 
as  permanent,  and  the  unexpended  balance  thereof  is  available  for 
the  purposes  of  said  commission  after  December  31,  1912. 
(62-930,  J.  A.  G.,  Dec.  18  and  23,  1912.) 


ARMY  ORGANIZATION:  General  Staff  Corps;  chiefs  of  the  Coast  Artil- 
lery Corps  and  of  the  Division  of  Militia  Affairs. 
The  laws  which  created  the  offices  of  the  Chief  of  Coast  Ai-tillery 
and  the  Chief  of  the  Division  of  Militia  Affairs  provided  that  tliey 
should  be  considered  as  additional  members  of  the  (General  Ntatf 
Corps.  The  act  of  February  14,  1903  (32  Stat,  831),  established  the 
office  of  Chief  of  Staff  and  the  General  Staff  Corps  and  prescribed 
the  composition  and  duties  of  the  same.  Subseijuently  to  the  acts 
making  the  chiefs  of  the  Artillery  Corps  and  of  the  Division  of 
Militia  Affairs,  respectively,  additional  members  of  the  J^'"^;;' 
Staff  Corps,  Congress  bv  section  5  of  the  act  of  August  l4,  l.»i-- 
(37  Stat.,  594),  prescribed  anew  the  composition  ot  tlie^^nmerai 
Staff  Corps  and  specified  the  manner  of  details  thereto.  The  eiglith 
section  repealed  all  laws  inconsistent  with  the  ternis  ot  said  act. 
Held,  that  neither  the  repealing  clause  in  said  section  8,  "<".t^;o 
provision  prescribing  anew  the  composition  of  the  <  general  Man 
Corps  and  the  manner  of  making  details  thereto,  repealed  the  la^^s 


104       DIGEST   OF  OPINIONS   OF   THE   JUDGE   ADVOCATE   GENEEAL. 

constituting  the  Chief  of  the  Artillery  Corps  and  the  Chief  of  the 
Division  of  Militia.  Affairs  additional  membei-s  of  the  General 
Staff,  nor  did  such  legislation  affect  their  relations  to  the  General 
Staff  Corps;  and  that  said  officers  continue  to  be  such  additional 
members. 

(6-213,  J.  A.  G.,  Oct.  18,  1912.) 


ARMY  RESERVE:   Composition  of;  obligation  to  serve. 

Section  2  of  the  Army  appropriation  act  of  August  24,  1912  (37 
Stat.,  590),  prescribes,  inter  alia: 

"  That  on  and  after  November  first,  nineteen  hundred  and  twelve, 
all  enlistments  in  the  Regular  Army  shall  be  for  the  term  of  seven 
vears,  the  first  four  vears  in  the  ser\4ce  with  the  organizations  of 
which  those  enlisting  shall  form  a  part,  and,  except  as  otherwise  pro- 
vided herein,  the  last  three  years  on  furlough  and  attached  to  the 
Arni}^  Eeserve  hereinafter  provided  for :     *     *     *     ." 

Then  follow  seven  provisos,  which,  referred  to  by  number  in  the 
order  in  which  they  appear,  provide  : 

/-IN  *  *  * 

(2)  "That  any  enlisted  man,  at  the  expiration  of  three  years' 
continuous  service  with  such  organizations,  either  under  a  fii'st  or 
any  subsequent  enlistment,  upon  his  written  application,  may  be 
furloughed  and  transferred  to  the  Armv  Reserve,  in  the  discretion 
of  the  Secretary  of  War,     *     *     *      : "  "^ 

(3)  *     *     * 

(4)  "That  hereafter  the  Army  Reserve  shall  consist  of  all  en- 
listed men  who,  after  having  served  not  less  than  four  years  with 
the  organizations  of  which  they  form  a  part,  shall  receive  furloughs 
without  pay  or  allowances  imtil  the  expiration  of  their  terms  of 
enlistment,     *     *     * : " 

(5)  *     *     * 

(6)  "That  except  upon  reenlistment  after  four  years'  service  or 
as  now  otherwise  provided  for  by  law,  no  enlisted  man  shall  receive 
a  final  discharge  until  the  expiration  of  his  seven  year  term  of  en- 
listment, including  his  term  of  service  in  the  Army  Reserve,  but 
any  such  enlisted  man  may  be  reenlisted  for  a  further  term  of  seven 
years  under  the  same  conditions  in  the  Army  at  large,  or,  in  the 
discretion  of  the  Secretary  of  War,  for  a  term  of  three  years  in  the 
Army  Reserve;  and  any  person  who  may  have  been  discharged 
honorably  from  the  Regular  Army  with  character  reported  as  at 
least  good,  and  who  has  been  found  physically  qualified  for  the 
duties  of  a  soldier,  if  not  over  forty-five  j^ears  of  age,  may  be  en- 
listed in  the  Arm}^  Reserve  for  a  similar  term  of  three  years : " 

(7)  "  That  in  the  event  of  actual  or  threatened  hostilities  the 
President,  when  so  authorized  by  CongTess,  may  summon  all  fur- 
loughed soldiers  who  belong  to  the  Army  Reserve  to  rejoin  their 
respective  organizations,  and  during  the  continuance  of  their  service 
with  such  organizations  they  shall  receive  the  pay  and  allowances 
authorized  by  law  for  soldiers  serving  therein,  and  any  enlisted 
man  who  shall  have  reenlisted  in  the  Army  Reserve  shall  receive 
during  such  service  the  additional  pay  now  provided  by  law  for 
the  soldiers  of  his  arm  of  the  service  in  their  second  enlistment  period. 


DIGEST  OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       105 

Upon  reporting  for  duty,  and  being  found  physically  fit  for  service, 
they  shall  receive  a  sum  ecjual  to  five  dollars  per  month  for  each 
month  during  which  they  shall  have  belonged  to  the  Reserve,  as 
veell  as  the  actual  cost  of  transportation  and  subsistence  from  their 
homes  to  the  places  at  which  they  may  be  ordered  to  report  foi-  tjutv 
under  such  summons." 

Udd^  (1)  That  the  fourth  proviso  in  section  2  of  tlie  act  of  August 
24,  1912,  stipray  is  to  be  regarded  as  only  a  partial  definition  of  the 
''Army  Reserve,"  and  that  the  section  as  a  whole  indicates  that  the 
Army  ReserAe  includes,  along  with  soldiers  furloughed  at  the  end 
of  four  years,  soldiers  furloughed  on  their  own  ai)plications  at  t!ie 
end  of  three  years,  together  \Nith  men  who  reenlist  or  eidist  i?'  •'•" 
Army  Reserve  as  authorized  in  said  section ; 

(2)  That  the  men  who  enlist  or  reenlist  in  the  Army  Reserve  f«)rm 
a  class  different  from  the  Army  Reserve  composed  of  furloughed 
soldiers  only  in  respect  of  the  fact  that  the  foruier  do  not  enter 
the  Reserve  by  way  of  furlough  from  particular  organizations,  and 
that  the  provision  for  their  pay  when  sunnnoned  for  active  duty  is 
somewhat  different  from  that  of  soldiers  furloughed  to  the  Army 
Reserve,  but  that  all  members  of  the  Reserve  are  under  the  same 
obligation  to  report  for  service  when  summoned  by  the  President, 
in  the  event  of  actual  or  threatened  hostilities,  when  so  authorized 
by  Congress. 

(34-050,  J.  A.  G.,  Oct.  1,  1912.) 


ARMY  RESERVE:  Riglit  to  vote;  amenability  to  trial  by  courts-martial. 

With  reference  to  the  following  questions,  viz: 

''(1)  Do  members  of  the  Army  Reserve  who  return  to  their  legal 
residences  have  a  right  to  vote  in  those  States  that  by  their  c<jnslitu- 
tion  deny  this  right  to  members  of  the  U.  S.  Army  or  Navy  {  " 

"(2)  Are  members  of  the  Army  Reserve  amenable  to  trial  by  couit- 
martial  for  any  military  offenses  committed  by  them  while  in  Re- 
serve and  not  recalled  to  the  colors  V 

Held,  that  as  soldiers  furloughed  to.  or  enlisted  or  reenlisted  in, 
the  Army  Reserve  established  bv  section  2  of  the  act  of  August  24, 
1912  (37  Stat.  590),  belong  to  and  constitute  part  of  the  Army  of 
the  United  States,  even  though  they  have  not  been  summoned  for 
active  service,  the  first  question  should  be  answered  in  the  negative 
and  the  second  in  the  affirmative. 

(86-220,  J.  A.  G.,  Nov.  26,  1912.) 


CLERKS  AND  EMPLOYEES:  Civil  service;  removal  of  a  person  in  the 
classified  service  on  written  charges. 
Charges  of  turning  in  defective  work  and  violating  the  rules  were 
made  against  a  seamstress  at  a  quartermaster  depot,  to  which  slie 
made  reply.  The  Chief  of  the  Quartermaster  Corps  having  decide.l 
that  the  evidence  was  not  sufficient  to  warrant  a  dischaige.  the  pa- 
pers were  again  submitted  with  additional  allidavits  supporting  t  le 
charges  and  findings  of  the  depot  council  that  l^^r  discharge  shoud 
be  recommended.    Section  6  of  the  act  ot  August  24,  1912  (3<  Stat., 


106       DIGEST   OF    OPINIONS   OP   THE    JUDGE   ADVOCATE   GENERAL. 

555),  appropriating"  for  the  Post  Office  Department,  provides  that 
no  person  in  the  classified  civil  service  shall  be  removed  therefrom 
except  for  reasons  stated  in  writing,  and  that  a  copy  of  the  charges 
preferred  shall  be  furnished  to  the  person  sought  to  b©  removed  who 
shall — 

"  also  be  allowed  a  reasonable  time  for  personally  answering  the 
same  in  writing;  and  affidavits  in  support  thereof;  " 

Held^  that  the  statute  gives  to  the  employee  the  right  to  answer 
not  only  the  charges  but  also  the  affidavits  in  support  thereof,  and  as 
the  new  evidence  in  this  case  does  not  seem  to  have  been  brought  to 
the  attention  of  the  accused  employee  the  record  does  not  show  com- 
pliance with  the  statute.  The  accused  should  be  given  opportunity 
to  answer  or  explain  the  allegations  in  the  affidavits. 

(16-210,  J.  A.  G.,  Nov.  20,  1912.) 


CLERKS  AND  EMPLOYEES:  Pay  of  on  legal  holidays  wlien  not  render- 
ing service;  closing  public  offices  on  general  holidays. 

Upon  consideration  of  the  question  of  closing  the  offices  of  the 
War  Department  in  and  about  the  port  of  New  York  on  the  day  of 
the  general  election  in  1912,  Ueld^  that  there  is  no  legal  objection 
to  the  War  Department's  following  the  usual  practice  of  closing  its 
offices  or  reducing  the  number  of  employees  on  duty  to  the  minimum 
necessary  for  the  transaction  of  public  business,  on  election  days  or 
other  general  holidays.  If  this  be  done,  no  question  could  arise  as 
to  the  pay  of  employees  whose  compensation  is  fixed  by  the  month 
or  year,  but  no  compensation  could  be  paid  to  per  diem  employees 
who  render  no  service  on  such  days,  unless  specifically  authorized 
by  Congress. 

(2-153.11,  J.  A.  G.,  Oct.  28,  1912.) 


CLERKS  AND  EMPLOYEES:  Payment  of  living  expenses  while  on  tem- 
porary duty. 

An  electrical  assistant  of  the  Signal  Corps,  stationed  at  the 
headquarters  of  the  Central  Division,  was  engaged  on  temporary 
duty  at  Fort  Sill,  Okla.,  for  more  than  20  days.  Before  completing 
his  work  at  that  post  he  was  ordered  to  perform  other  temporary 
duty  at  another  place,  and  was  compelled  afterwards  to  return  to 
Fort  Sill  to  complete  the  work  under  his  first  assignment.  Sub- 
division 5,  paragraph  744,  Army  Regulations,  1910,  provides  that 
civilian  employees  of  the  War  Department  are  entitled  to  reimburse- 
ment for  the  cost  of  meals  and  lodging  during  absence  from  their 
regular  stations  on  temporary  duty.  This  right  has  been  limited  by 
a  letter  of  The  Adjutant  General  of  the  Army  to  a  period  of  not  to 
exceed  30  days. 

Held,  that  as  the  electrical  assistant  in  this  case  was  interrupted 
by  competent  orders  in  the  performance  of  his  temporary  duty  at 
Fort  Sill,  his  return  to  complete  the  work  at  that  post  was  in  the 
nature  of  a  second  assignment  or  tour  of  duty,  and  that  he  was  en- 
titled to  an  allowance  of  30  days  for  each  assignment  at  said  post. 

(16-403,  J.  A.  G.,  Nov.  4,  1912.) 


DIGEST  OF   OPINIONS  OF   THE   JUDGE   ADVOCATE   GENERAL.       107 

CLERKS  AND   EMPLOYEES:    Transfer   and   payment   of  from   lump-sum 
appropriation. 

It  was  proposed  to  transfer  a  clerk  at  $1,2U0  from  the  oliice  of  the 
Chief  of  Engineers,  War  Department,  to  the  Engineer  Department 
at  Large  and  pay  him  a  salary  of  $1,500  from  lump-sum  appropria- 
tions, the  clerk  to  be  stationed  at  Washington,  D»  C.,  and  his  duties 
to  be  essentially  different  from  those  he  was  already  perf(jrming. 
Section  7  of  the  general  deficiency  act  of  August  2(j,  1012  {'.il  Stat., 
626),  provides,  inter  alia: 

"  Xor  shall  any  person  employed  at  a  specific  salary  be  hereafter 
transferred  and  hereafter  paid  from  a  lump-sum  appropriation,  a 
rate  of  compensation  greater  than  such  specific  salary."' 

Held,  that  the  proposed  transfer  and  appointment  would,  in 
effect,  be  a  transfer  at  the  salary  now  received  and  an  advance  in 
compensation  in  violation  of  said  act,  and  that  the  same  could  not 
lawfully  be  made,    19  Comp.  Dec,  163. 

(5-075,  J.  A.  G.,  Nov.  9,  1912.) 


CLOTHING    ALLOWANCE:   Change    of    initial    allowance    during    enlist- 
ment. 

A  soldier  enlisted  May  12,  1912,  for  three  years  and  was  credited 
with  the  initial  allowance  for  clothing  in  force  at  the  time.  In  esti- 
mating this  initial  allowance  the  value  of  an  overcoat  was  taken 
into  consideration.  On  July  1,  1912,  the  issue  of  overcoats  as  a  part 
of  a  soldier's  clothing  allowance  was  discontinued,  and  such  articles 
were  thereafter  issued  on  company  and  detachment  commanders' 
receipts  for  the  use  of  the  soldiers.  The  initial  allowance  was  at 
the  same  time  reduced.  This  soldier  did  not  draw  an  overcoat  and 
one  was  issued  for  his  use.  Paragraph  1176,  Army  Regulations, 
1910,  provides  that  the  initial  allowance  for  clothing  is  not  con.sidered 
as  earned  until  the  soldier  has  been  in  service  for  six  months. 

Held,  that  this  soldier  should  be  credited  on  his  initial  clothing 
allowance  at  the  rate  in  force  at  the  time  of  his  enlistment,  and  that 
such  credit  should  remain  notwithstanding  the  initial  allowance 
was  subsequently  reduced  before  the  expiration  of  the  six  months' 
period.    C.  27637. 

(72-420,  J.  A.  G.,  Nov.  25,  1912.) 


CLOTHING  ALLOWANCE:  Title  to  clothing  issued  to  soldier  while  in 
the  service  and  that  retained  by  him  after  discharge. 
The  law  provides  that  the  President  shall  prescribe  the  quantity 
and  kind  of  clothing  which  shall  annually  be  issued  to  the  troops  of 
the  United  States  (sec.  1296,  Rev.  Stat.)  and  this  is  done  by  the  issue 
of -tables  from  time  to  time  showing  the  articles  which  siiall  be  issuert 
and  the  values  thereof.  When  the  soldier  is  discharged  from  he 
service  his  clothing  account  is  adjusted  pursuant  to  sections  Li  r 
and  1308,  Revised  Statutes,  and  he  is  charged  in  ca^J  with  the  va  o 
of  the  clothing  overdrawn  and  paid  m  cash  the  difference  in  ^aluc 
between  the  amount  allowed  and  the  amount  drawn. 


108       DIGEST  OF    OPINIONS    OF    THE    JUDGE   ADVOCATE   GENERAL. 

lleld^  that  while  in  the  service  the  clothing  drawn  by  the  soldier 
still  remains  the  property  of  the  United  States,  but  that,  upon  the 
final  settlement  on  discharge  when  the  soldier  pays  for  the  clothing 
which  he  is  allowed  to  retain,  the  Government  relinquishes  its  title 
to  such  retained  clothing  and  the  same  becomes  the  property  of  the 
soldier. 

(C.  11251,  J.  A.  G.,  Jan.  10,  1912.) 


COMMUTATION  OF  QUARTERS:  Duty  with  troops;  status  of  an  officer 
acting  as  post  and  district  quartermaster,  and  of  a  pay  clerk  on  duty 
with  him. 

An  officer  of  the  Quartermaster  Corps  was  ordered  to  report  to 
the  commanding  officer  at  Fort  Banks,  Mass.,  for  duty  as  post 
quartermaster,  and  also  to  the  commanding  officer  of  the  Artillery 
District  of  Boston,  whose  headquarters  were  at  the  same  place,  for 
duty  as  district  quartermaster.  A  pay  clerk  was  also  ordered  to 
report  at  the  same  time  at  Fort  Banks  to  said  officer  of  the  Quarter- 
master Cori^s  for  duty  with  him.  Owing  to  lack  of  available  quarters 
at  Fort  Banks  authority  was  requested  for  the  officer  and  pay  clerk 
to  live  at  Winthrop,  Mass.,  and  draw  commutation  of  quarters. 
Ileldi  that  as  an  officer  of  the  Quartermaster  Corps  the  duties  of 
such  officer  under  his  assignment  were  not  limited  to  those  of  quar- 
termaster but  embraced  duties  formerly  covered  by  the  Quarter- 
master, Subsistence,  and  Pay. Departments;  that  his  duties  as  post 
and  as  district  quartermaster  placed  him  in  the  status  of  an  officer 
serving  with  troops;  and  that  he  was,  therefore,  not  entitled  to  com- 
mutation of  quarters.  For  the  same  reason  the  pay  clerk  should  be 
regarded  as  serving  with  troops  and  as  not  entitled  to  said  com- 
mutation. 

(72-333,  J.  A.  G.,  Dec.  7,  1912.) 


CONTRACTS:   Appropriations;   obligations   in   excess   of;    liability  for   in- 
definite amount. 

Section  3679,  Revised  Statutes,  as  amended  by  the  act  of  February 
27,  1906  (34  Stat.,  48),  expressly  forbids  the  expenditure  of  money 
in  excess  of  appropriations,  or  the  involving  of  the  Government 
'•  in  any  contract  or  other  obligation  for  the  future  payment  of 
money  in  excess  of  such  appropriations  unless  such  contract  or  obli- 
gation is  authorized  by  law." 

Held,  that  the  stipulation  in  a  proposed  revocable  lease  of  a  por- 
tion of  a  pier  from  the  Commissioner  of  Docks,  New  York  City,  to 
indemnify  the  city  for  all  claims  arising  from  accidents  to  persons 
or  property,  is  objectionable  because  it  would  bind  the  Government  to 
a  contingent  liability  for  an  indefinite  and  possibly  a  large  amount, 
incapable  of  ascertainment  when  the  obligation  is  entered  into,  and 
which  might  exceed  the  amount  of  the  appropriation.  Held  further^ 
that  a  provision  in  said  lease  for  rebuilding  the  premises  if  destroyed 
by  fire  or  other  means  named,  is  likewise  objectionable  as  indefinite, 
and  should  not  be  inserted  unless  a  sufficient  sum  for  rebuilding 
be  reserved  from  the  appropriation. 

(76-012.1,  J.  A.  G.,  Oct.  28,  1912.) 


DIGEST   OF   OPINIONS  OF   THE   JUDGE   ADVOCATE   GENERAL.       109 

CONTRACTS:  Eight-hour  law  and  law  requiring  bonds  for  the  protection 
°T  .f ^°^1''^'  "lec^anics,  and  material  men;  labor  on  vessels  of  th« 
tTnited  States.  ^' 

The  act  of  August  1,  1892  (27  Stat,  340),  limits  the  service  or  em- 
ployment of  any  laborer  or  mechanic  employed  ''  bv  any  contractor  or 
subcontractor  upon  any  of  the  public  works  of  the  United  States" 
to  eight  hours  in  any  one  calendar  day,  and  provides  tliat— 

"It  shall  be  unlawful  for  *  *  *  any  such  contractor  or  sub- 
contractor whose  duty  it  shall  be  to  emi)lov.  direct,  or  control  the 
services  of  such  laborers  or  mechanics  to  re(|uire  or  permit  any  such 
laborer  or  mechanic  to  work  more  than  eight  hours  in  any  calendar 
day  except  in  case  of  extraordinarv  emergencv." 

the  act  of  Fei)ruary  24.  1905  (33  Stat..  812).  requires  a  bond  for 
the  protection  of  laborers  and  material  men  to  be  e.xecuted  bv  everv 
contractor — 

"For  the  construction  of  any  public  building,  or  the  prosecution 
and  completion  of  any  public  work." 

Held^  that  vessels  owned  by  the  United  States  and  those  under 
construction  for  it,  the  title  to  w^hich  passes  to  the  United  States  as 
payments  are  made,  are  public  works  within  the  meaning  of  tlic 
above  statutes  relating  to  the  hours  of  labor  and  the  execution  of 
bonds  for  the  protection  of  laborers  and  material  men  {Title  (ruaran- 
tee  <&  Trust  Go.  v.  Crane  Co.,  219  U.  S.,  24;  29  Op.  Atty.  Gen.,  395), 
and  that  the  specifications  in  future  contracts  for  the  construction  or 
repair  of  such  vessels  should  contain  a  reference  to  said  act  of  AuLnist 
1,  1892,  the  same  as  contracts  on  other  public  works  involving  the 
employment  of  laborers  and  mechanics. 

(32-213.3,  J.  A.  G.,  Oct.  21,  1912.) 


CONTRACTS:   Laborers  and  material  men;  bond  for  protection  of.   where 
consideration  is  small. 

The  act  of  February  24,  1905  (33  Stat.,  811),  requires  every  person 
entering  into  a  contract  with  the  Government  for  the  construction  of 
any  public  building  or  the  prosecution  and  completion  of  any  i^ulilic 
work  to  execute  the  usual  penal  bond  with  an  additional  provision 
for  making  prompt  payment  to  all  persons  furnishing  labor  or  mate- 
rial for  the  work.  Held,  that  the  statute  makes  no  exception  in  cases 
where  the  consideration  is  small  or  w^here  the  Government  is  fur- 
nishing part  of  the  material,  and  that  the  requirement  for  the  execu- 
tion of  a  bond  in  such  cases  can  not  be  waived;  but,  h,hl  further, 
that  the  amount  of  the  bond  as  fixed  by  paragraph  577.  Army  lu'gu- 
lations,  1910,  and  General  Orders,  No.  60,  War  Department.  May  S, 
1911,  may  be  w^aived  and  the  amount  increased  or  diminished  as  Ihe 
circumstances  in  each  case  mav  seem  to  require. 

(12-123.1,  J.  A.  G.,  Oct.  14,"  1912.) 


CONTRACTS:   Option    to    increase    quantities    when    appropriation    is    in- 
suflB-cient  for  the  entire  work. 

The  amount  appropriated  for  a  public  work  not  being  suflieient 
for  its  completion,  it  was  proposed  to  insert  in  the  specifications  a 
provision  reserving  to  the  United  States  the  right  to  increase  the 


110        DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEBAL. 

quantities  used  as  a  basis  for  canvassing  the  bids  to  an  amount  suffi- 
cient to  complete  the  entire  work  should  Congress  make  provision 
therefor.  Held,  that  this  would  not  bind  the  Government  to  increase 
the  amount,  and  the  insertion  of  the  provision  contemplated  would 
not  be  a  violation  of  sections  3679,  3732,  and  3733,  Revised  Statutes, 
which  prohibit  the  entering  into  a  contract  beyond  the  amount  appro- 
priated by  law  for  its  fulfillment;  and  that  the  original  advertise- 
ment would  be  sufficient  to  cover  the  contract  as  extended  by  the 
option. 

(76-101,  J.  A.  G.,  Nov.  7,  1912.) 


COPYRIGHTS:   Compilation  of  daily  wage  scale  by  a  Government  clerk; 
protection  of  copyright  when  used  by  the  United  States. 

A  clerk  in  the  Engineer  Department  at  Large  compiled  a  daily 
wage  scale  at  his  home  and  olfered  the  same  to  the  department  for 
use  in  the  public  service,  reserving  to  himself,  if  permissible,  the 
privilege  of  copyrighting  the  same.  Held,  that  the  clerk  would  not 
lose  his  right  of  copyright  in  his  production  by  granting  to  the 
United  States  permission  to  print  the  same  for  its  use  (9  Cyc,  915), 
but  that  in  order  to  protect  himself  from  infringement  it  would  be 
necessary  to  have  a  notice  printed  on  the  title  page,  or  on  the  page 
following,  reserving  the  right  to  the  copyright. 

(24-330,  J.  A.  G.,  Dec.  6,  1912.) 


DESERTERS:   Statutes    of    limitation;    48th    and    103d    Articles    of    War; 
reward  for  apprehension. 

A  soldier  enlisted  on  June  16,  1906;  deserted  on  August  24,  1907; 
was  apprehented  and  returned  to  military  control  on  January  28, 
1910;  escaped  from  confinement  on  February  24,  1910,  while  await- 
ing trial ;  and  was  again  apprehended  and  returned  to  military  con- 
tral  on  or  about  November  20,  1912.  He  claimed  to  have  been  within 
the  limits  of  the  United  States  during  the  entire  period  since  his 
enlistment,  and  there  was  nothing  in  the  statement  of  facts  to  nega- 
tive this  claim,  nor  was  there  anything  in  the  statement  of  facts  to 
indicate  that,  so  far  as  the  offense  of  escape  was  concerned,  the  case 
came  within  the  saving  clause  of  the  first  paragraph  of  the  103d 
Article  of  War,  reading  as  follows :  "  unless,  by  reason  of  having 
absented  himself,  or  of  some  other  manifest  impediment,  he  shall  not 
have  been  amenable  to  justice  within  that  period." 

The  accused  had  not  been  restored  to  duty  to  complete  his  term  of 
service,  either  following  an  admission  of  the  first  charge  of  deser- 
tion or  following  a  conviction  upon  that  charge. 

Held,  that  in  the  absence  of  an  admission  as  to  the  correctness  of 
the  charge  of  desertion  or  of  a  conviction  upon  that  charge,  thus 
determining  that  the  soldier  had  not  completed  his  term  of  service 
and  fixing  his  liability  to  serve  for  a  definite  period  after  his  restora- 
tion to  duty  and  beyond  the  calendar  term  for  which  he  enlisted,  the 
48th  Article  of  War,  in  connection  with  the  mere  fact  that  he  had 
been  charged  with  desertion,  can  not  serve  to  postpone  the  beginning 
of  the  two-year  period  of  limitation  prescribed  in  respect  of  deser- 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.        Ill 

tion  in  the  second  paragraph  of  the  103d  Article  of  War;  that  should 
the  soldier  be  arraigned  upon  the  two  charges  of  desertion  or  upon 
the  charge  of  escape,  he  might  plead  the  statute  of  limitations  suc- 
cessfully in  respect  of  said  offenses;  and  that,  in  view  of  this  fact 
and  of  the  provisions  of  paragraph  121,  Army  Regulations,  no  re- 
ward was  payable  for  his  apprehension  and  delivery. 
(26-323,  J.  A.  G.,  Nov.  23,  1912.) 


DETACHED  SERVICE:   Absence  with  leave;  penalty  for  detaching  officer 
for  duty  of  any  kind  under  certain  conditions. 

The  Army  appropriation  act  of  August  24,  1912  (37  Stat.,  HTl), 
contains  a  proviso  prohibiting  officers  of  company  grade  from  being 
detached  from  their  organizations  for  duty  of  any  kind  unless  they 
shall  have  been  "  actually  present  for  duty  for  at  least  two  of  the 
last  preceding  six  years  "  with  their  company  organizations,  adding 
that — 

"All  pay  and  allowances  shall  be  forfeited  by  any  superior  for 
any  period  during  which,  by  his  order  or  his  permission  or  by  reason 
of  his  failure  or  neglect  to  issue  or  cause  to  be  issued  the  proper 
orders  or  instructions  at  the  proper  time,  any  officer  shall  be  de- 
tached or  permitted  to  remain  detached  in  violation  of  any  of  the 
terms  of  this  proviso." 

Held^  that  an  officer  of  company  grade  who  is  absent  with  leave, 
though  not  "  actually  present  for  duty  "  with  his  organization  is  not 
to  be  considered  as  detached  from  his  organization  for  duty  of  any 
kind  "  in  such  sense  as  to  bring  into  operation  the  penalty  clause 
of  the  proviso  above  quoted. 

(6-224,  J.  A.  G.,  Sept.  16,  1912.) 


DETACHED  SERVICE:  Absence;  leave  of,  to  company  officer  on  detached 
service  who  may  no  longer  remain  thereon,  to  enable  him,  while  on 
leave  status,  to  continue  in  the  same  duties. 

A  captain  of  Cavalry  who  had  had  less  than  two  years'  service 
with  his  troop  out  of  the  preceding  six  years,  and  who  was  on  duty 
under  appropriate  orders  as  a  student  officer  at  a  military  school  in 
France,  applied  for  three  months  leave  of  absence  in  order  to  con- 
tinue his  work  at  said  school  and  for  permission  thereafter  to  con- 
tinue said  work  until  the  completion  of  the  course,  if  in  the  mean- 
time the  military  authorities  could  make  arrangements  to  that  end. 
An  order  had  been  issued  to  said  officer  relieving  him  from  duty  at 
the  school  on  December  15,  1912,  and  directing  him  to  proceed  to 
join  his  troop  in  compliance  with  the  proviso  of  the  act  of  August 
24,  1912  (37  Stat.,  571),  as  amended  by  the  joint  resolution  of  the 
same  date,  that — 

"  On  and  after  December  15,  1912,  in  time  of  peace  whenever  any 
officer  holding  a  permanent  commission  in  the  line  of  the  Army  with 
rank  below  that  of  major  shall  not  have  been  actually  present  for 
duty  for  at  least  two  of  the  last  preceding  six  years  with  a  troop, 
battery,  or  company  of  that  branch  of  the  Army  in  which  he  sluill 
hold  said  commission,  such  officer  shall  not  be  detached  nor  per- 


112   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEEAL. 

mitted  to  remain  detached  from  such  trooj),  battery,  or  company 
for  duty  of  any  kind." 

Held^  that  service  as  a  student  officer  at  a  foreign  military  school 
under  the  conditions  stated  is  service  for  which  an  officer  of  the  line 
of  the  Army  below  the  grade  of  major  is  not  to  be  detached  or  per- 
mitted to  remain  detached  if  he  shall  not  have  been  "actually  present 
for  duty  for  at  least  two  of  the  last  preceding  six  years"  with  his 
troop,  battery,  or  company,  and  that  the  granting  of  a  leave  of  ab- 
sence for  the  purpose  of  allowing  an  officer  to  continue  in  the  per- 
formance of  such  duty  during  the  period  of  such  absence  would  be 
in  contravention  of  the  law.  Advised^  therefore,  that  the  leave  be 
not  granted.    19  Op.  Atty.  Gen.,  600. 

(6-124,  J.  A.  G.,  Nov.  27,  1912.) 


DETACHED  SERVICE:  Duty  status;  definition  of  the  terms  "  company, 
troop,  or  battery,"  "  actually  present  for  duty,"  and  "  detached  for 
duty  of  any  kind;  "  date  when  penalty  clause  becomes  operative. 

The  Army  appropriation  act  of  August  24,  1912  (37  Stat.,  571), 
provides — 

"  That  hereafter  in  time  of  peace  whenever  any  officer  holding  a 
permanent  commission  in  the  line  of  the  Army  with  rank  below  that 
of  major  shall  not  have  been  actually  present  for  duty  for  at  least 
two  of  the  last  preceding  six  years  with  a  troop,  battery,  or  company, 
of  that  branch  of  the  Army  in  which  he  shall  hold  said  commission, 
such  officer  shall  not  be  detached  nor  permitted  to  remain  detached 
from  such  troop,  battery,  or  company,  for  duty  of  any  kind;  and 
all  pay  and  allowances  shall  be  forfeited  by  any  superior  for  any 
period  during  which,  by  his  order,  or  his  permission,  or  by  reason  of 
his  failure  or  neglect  to  issue  or  cause  to  be  issued  the  proper  order 
or  instructions  at  the  proper  time,  any  officer  shall  be  detached  or 
permitted  to  remain  detached  in  violation  of  any  of  the  terms  of  this 
proviso ;  " 

This  proviso  was  amended  by  joint  resolution  of  the  same  date 
(37  Stat.,  645),  substituting  for  the  w^ord  "hereafter"  where  the 
same  first  appears  therein,  the  words  "on  and  after  December  fif- 
teenth, nineteen  hundred  and  twelve." 

On  consideration  of  said  proviso,  as  amended,  it  was  held: 

1.  Congress  has  specifically  designated  the  composition  of  troops, 
batteries,  and  companies,  and  prescribed  the  number  and  grades  of 
officers  and  enlisted  men  for  each.  It  has  thus  pronounced  a  fairly 
specific  definition  of  what  a  troop,  battery,  or  company  is,  and  has 
limited  the  number  of  them  that  normally  compose  the  several 
branches  of  the  service.  The  presumption  is  strong  that  Congress 
has  employed  these  terms  in  the  above  proviso  in  the  sense  thus  de- 
fined. The  term  troop,  battery,  or  company  can  not  cover  machine- 
gun  platoons,  regimental  detachments  (such  as  rifle  teams),  Army 
service  detachments  maintained  at  the  service  schools  and  at  the 
Military  Academy,  the  Cavalry,  Field  Artillery,  and  Engineer  de- 
tachments maintained  at  the  latter  point,  and  the  recruit  and  prison 
companies  maintained  at  the  recruit  depots  and  the  United  States 
Military  Prison  and  its  branch. 


DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GEXFRAI..        113 

2.  The  use  of  the  Avord  "  actually  "'  in  connection  with  the  phrase 
"  present  for  duly  "  requires  tliat  the  phrase  should  be  construed  lit- 
erally, that  is,  that  the  olHcer  shouhl  be  present  on  duty  with  one  of 
the  organizations  prescribed  in  the  sense  that  he  is  in  a  /rf/uhir  and 
norm/d  duty  status  with  respect  thereto,  althoufrh  it  may  at  times  be 
impracticable  for  him  actually  to  perform  e\ery  duty  normally  per- 
taining to  the  status — and  therefore  as  excluding  an  oilicer  wfio.  ul- 
though  physically  present  at  the  post  or  station  where  his  troop,  bat- 
tery, or  company  is  serving,  and  is  separated  from  duty  i herewith 
by  an  order  assigning  him  for  other  duty,  notwithstanding  he  may 
be  available  for  such  duty  in  the  sense  that  an  order  from  liis  imm«*- 
diate  commander  would  restore  him  to  such  duty. 

{a)  Performance  of  duty  is  the  object  of  the  juTsence  which  tiic 
statute  commands  and  is  the  single  contemplation  of  the  phrase 
"actually  present  for  duty;"  and  any  presence  that  does  not  con- 
template as  its  primary  purpose  and  result  the  performance  of  duty 
as  the  duty  shall  normally  occur  is  a  constructive  rather  than  an 
actual  presence  for  duty  and  is  not  a  compliance  with  the  statute. 

{h)  In  determining  Avhen  officers  who  have  been  withdrawn  from 
the  performance  of  normal  duty  with  a  troop,  battery,  or  company, 
including  those  so  withdrawn  by  the  orders  of  their  immediate  regi- 
mental or  post  commanders,  may  be  treated  as  again  ''actually  pres- 
ent for  duty  "  with  a  troop,  battery,  or  company,  the  true  rule  is  that 
when  such  an  officer  shall  resume,  pursuant  to  competent  orders,  such 
an  actual  relation  to  a  com]iany  as  will  make  him  available  without 
further  orders  to  perform  the  usual  duties  of  his  ^rude  with  respect 
to  said  company,  with  the  primary  purpose  of  performing  them,  and 
therefore  stands  able  and  ready  to  perform  them  as  they  arise  in  tiic 
course  of  military  administration,  he  is  "  actually  present  for  duty  '' 
with  a  troop,  battery,  or  company  within  the  meaning  of  the  statute. 

3.  In  the  phrase  ""  shall  not  be  detached  nor  permitted  to  remain 
detached  *  *  *  for  duty  of  any  kind,"  the  qualifying  words  "  of 
any  kind  "  bring  wdthin  thepurview  of  the  phrase  all  descriptions  of 
duty  for  w  hich  it  is  customary  to  detach  officers,  irrespective  of  its 
character  or  duration,  and  it  wottld  not  be  competent  to  read  into 
the  proviso  an  exception  as  to  any  detached  duty  which  under  the 
customs  of  the  service  or  the  usual  practice  of  military  administra- 
tion would  not  require  a  formal  order  of  detachment  from  a  troop, 
battery,  or  company.  The  kind  of  order  which  creates  or  destroys 
the  duty  status  or  the  grade  of  authoi-ity  which  issues  such  order  can 
not  be  "regarded  as  material  in  determining  whether  any  kind  ()f 
•'  detachment  "  comes  w  ithin  the  terms  of  the  proviso.  The  fiict  that 
a  formal  order  is  not  required,  or  is  not  issued,  or  does  not  denomi- 
nate such  duty  as  detached  dutv.  or  does  not  in  terms  order  a  de- 
tachment of  any  kind,  can  not  conclude  the  facts  in  the  case  or  serve 
to  qu.alify  the  force  of  the  words  "  duty  of  any  kind :  n.n-  can  he 
duration  of  the  duty,  whether  transitory  or  temporary.  <>r  t..r  the 
longer  and  usually  more  or  less  definite  period,  serve  to  extinguish  its 
character  as  ''  duty  of  any  kind.". 

4.  Held,  consequently,  in  response  to  a  specific  inc|uiry— 

(a)  That  an  officer  is  not  to  be  considered  as  '^  actually  present  fo, 
duty  "  with  a  troop,  battery,  or  company  when  ordered  ..  an.  ih^  - 
forming   the    following ^dejscriplions.ot   duty,   provided    that    the 

93668°— 17 8 


114   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GEXEKAL. 

order  assigning  him  to  sucli  duty  operates  to  relieve  him  from  the 
performance  of  duty  with  his  proper  organization,  namely: 

To  another  post  to  take  an  examination  for  promotion;  to  the 
Philippine  Islands  even  though  the  officer  is  due  to  be  transferred  on 
account  of  foreign  service;  on  court-martial  duty  at  another  post  as 
a  member,  witness,  judge  advocate,  or  counsel ;  to  make  annual  militia 
inspections ;  for  militia  duty  at  camps  of  instruction ;  for  duty  as 
umpire  or  observer  at  maneuvers,  or  as  range  officer  or  competitor 
at  competitions;  for  reconnoissance  or  map  Avork;  to  supervise  elec- 
tions: as  a  member  of  any  board  or  commission  at  a  post  other  than 
his  own;  to  conduct  prisoners:  for  duty  as  regimental  or  battalion 
staif  officer;  for  duty  as  post  adjutant,  quartermaster,  commissary, 
range  officer,  prison  officer,  post  exchange  offxcer,  engineer,  ordnance, 
signal,  or  police  officer;  for  duty  with  a  machine-gun  platoon  or 
regimental  detachment;  on  duty  relieving  flood  and  earthquake 
sufterers;  sick  in  quarters  or  in  hospital  at  his  post  or  elsewhere;  in 
quarantine  at  a  station  where  his  company  is  on  duty;  on  duty  as 
artillery  district  staff  officer  serving  at  a  post  where  Coast  Artillery 
companies  are  stationed,  but  performing  no  company  duty;  except, 
however,  that  an  officer  who  commands  a  detached  portion  of  his 
troop,  battery,  or  company  is  to  be  considered  as  actually  present  for 
duty  with  his  organization  as  contemplated  by  said  proviso. 

(h)  That  an  officer  of  company  grade  who  is  sick  in  quarters  or 
in  hospital  at  his  post  or  elsewhere,  or  in  quarantine  at  a  station 
where  his  company  is  on  duty  or  elsewhere,  or  in  compliance  with 
summons  from  a  ci^ii  or  military  court,  or  in  arrest,  or  undergoing 
trial,  or  traveling  in  compliance  with  orders  to  change  station  from 
one  company  assignment  to  another,  or  absent  with  leave,  though  not 
"  actually  present  for  duty  "  with  his  organization,  is  not  to  be  con- 
sidered as  detached  from  his  organization  "  for  duty  of  any 
kind  "  in  such  sense  as  to  bring  into  operation  the  penalty  clause  of 
the  proviso. 

(c)  The  status  "awaiting  orders"  is  an  exceptional  one  in  our 
service  and  the  attendant  circumstances  in  each  case  must  be  relied 
upon  to  determine  whether  the  placing  of  the  particular  officer  in 
that  status  may  or  may  not  bring  into  operation  the  penalty  clause 
of  the  proviso. 

5.  Adrised,  that  the  effect  of  the  proviso  is  to  require  that  an  ac- 
counting be  kept  with  all  line  officers  of  comjjuny  grade  under  the 
headings  "  actually  present  for  duty  with  a  troop,  battery,  or  com- 
pany," and  "  detached  from  a  troop,  battery,  or  company  for  duty  of 
any  kind."  The  first  account  will  reveal  the  officer's  eligibility  for 
detached  service:  the  second  will  reveal  the  field  of  application  of  the 
penalty  clause  of  the  statute.  The  accounting  will  also  reveal  a  third 
status  of  officers  of  company  grade  in  which  they  are  neither  "  actu- 
allv  present  for  duty  with  a  troop,  batter}',  or  company."  nor  de- 
tached therefrom  for  duty  of  any  kind.  Such  absences  from  duty 
with  a  company  will  prevent  the  officers  from  accumulating  eligibil- 
it,y  for  detached  service,  but  will  not  furnish  any  occasion  for  the 
application  of  the  pesialty  clause. 

6.  That  the  period  between  the  approval  of  the  above  proviso 
(August  24,  1912)  and  the  date  of  its  taking  effect  (December  15, 
1912)    is  one  of  preparation  for  meeting  the  requirements  of  the 


DIGEST    OF    OPINIOXS   OF    THE    JUDGE   ADVOCATE    GENEBAL.        115 

statute;  that  the  changes  in  the  status  and  stations  of  officers  iieces- 
saiy  to  meet  the  requirements  of  the  proviso  must  be  ordered  so  as 
to  become  etfective  on  or  before  Deceml^er  15,  ldi-2\  and  that  on 
and  after  that  date  the  penalty  clause  of  the  proviso  will  be  operative 
against  any  officer  responsible  for  its  nonenforcement. 
(6-1:24.  J.  A.  G.,  Sept.  IG,  191-2.) 


DETACHED  SERVICE:  Duty  status;  detail  as  professor  of  military  science 
and  tactics,  and  assumption  of  active  duty  while  on  leave  of  absence. 

Section  1225,  Revised  Statutes,  provides  tliat — 

"  The  President  may.  upon  the  application  of  any  e.-tabli^hed 
college  or  university  within  the  United  States,  having  capacity  to 
educate,  at  the  same  time,  not  less  than  one  hundred  and  fifty  maU* 
students,  detail  an  officei"  of  the  Arniv  to  act  as  president,  superin- 
tendent, or  professor  thereof ;     *     *     *."'' 

Said  section  was  amended  by  the  act  of  Xovemi^er  3, 1S93  (2^  Stat.. 
7),  wdiich  provided  that — 

"  Xo  officer  shall  be  thus  detailed  who  has  not  had  five  year-"  .-  i  >  - 
ice  in  the  Army  and  no  detail  to  such  duty  shall  extend  for  more 
than  four  years." 

An  officer  who  had  not  had  sufficient  commissioned  service  to  ren- 
der him  available  for  detail  as  professor  of  military  science  and  tac- 
tics under  the  provisions  of  said  section,  as  amended,  applied  for 
leave  with  permission  to  report  to  the  president  of  the  university  to 
which  he  sought  to  be  detailed  as  soon  as  the  position  should  liecome 
vacant,  and  with  the  purpose  of  performing  the  duties  thereof  while 
on  leave,  and  of  entering  upon  the  duties  of  the  position  under  a 
regular  detail  thereto,  after  the  expiration  of  his  leave  when  he-wouM 
have  had  sufficient  commissioned  service  to  permit  his  detail,  //t/f/, 
that  when  an  officer  on  leave  enters  upon  the  actual  performance  of 
military  duties,  with  the  permission  of  the  War  Depai-tment.  he 
thereby  relinquishes  his  leave  and  enters  upon  a  duty  status,  and  tiiat 
to  permit  a  leave  to  be  taken  for  this  purpose  would  l)e  to  grant  per- 
mission to  do  bv  indirection  what  could  not  lawfully  be  done  directly. 
Aclvhed,  therefore,  that  the  leave  requested  for  the  iiui-pose  ex- 
pressed, and  the  permission  requested  in  connection  therewith,  be  not 
granted. 

(2-100,  J.  A.  G.,  Nov.  25.  1912.) 


DETACHED    SEE, VICE:   Duty    status;    mine    planter;    status    of   an    officer 

commanding-  same  with  respect  to  his  bein^  actually  present  for  duty 

with  his  company. 

A  mine  planter  exists  for  the  purpose  of  giving  expert  instruKion 

in  mine  service.     The  command  consists  of  a   cf)nnn;inding  offi«-er 

assigned   thereto  by   the   War   Department,  a    detachment   «'/ .  men 

chosen  from  one  or  more  companies  for  their  aptitude  an.l  efficiency 

in  the  duties  required  of  them,  a  crew  of  civilian  employees,  the  ve>- 

sel,  and  the   materiel.     The   duty   of  such   connnand    is  to   i-ender 

expert  or  special  instructicm  in  mine  ser\  icc  to  l!»e  various  C  oast 

Artillerv  commands  which  it  may  visit  in  the  several  .Vitiliery  .lis- 

tricts  as"  required  by  orders.     The  command  of  a  nunc  i)Ianter  si'rv- 


IIG       DIGEST   OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENEEAL. 

in^  several  districts  under  the  direction  of  the  War  Department  is 
not  subject  to  the  orders  of  the  commander  of  the  district  to  which 
it  is  for  the  time  bein£?  assigned  for  instruction  purposes,  except  as 
to  the  matters  pertaining  to  the  employment  of  the  vessel.  An  offi- 
cer assigned  to  the  command  of  a  mine  planter  by  the  War  Depart- 
ment is  habitually  carried  as  on  detached  service  and  remains  on  such 
duty  the  usual  time  permitted  for  detached  service.  The  regulations 
for 'mine  j)lanters  declare  that  "the  mine  planter  and  the  detachment 
on  board  shall  constitute  a  separate  command  immediately  under  the 
command  of  the  officer  of  the  vessel."  Held.,  that  since,  under  the 
present  regulations  and  the  conditions  of  the  service  where  a  single 
planter  serves  several  districts,  the  commanding  officer  of  a  mine 
planter  is,  except  for  minor  purposes,  under  the  immediate  jurisdic- 
tion of  tlie  Secretary  of  War,  exercises  a  separate  and  independent 
command  under  such  authority,  and  is  not  imder  the  control  of  any 
company  or  post  commander,  he  is  not,  therefore,  to  be  considered  as 
"  actualiv  present  for  duty  "  with  his  company  within  the  meaning  of 
the  detached-service  law,  even  though  lie  is  in  command  of  a  detach- 
ment of  the  company  to  which  he  belongs  or  from  which  he  was 
detached  for  duty  on  the  mine  planter. 
(6-124,  J.  A.  G..  Dec.  12,  1912.) 


DETACHED  SERVICE:   Ordnance  Department;  service  in. 

The  Army  appropriation  act  of  August  24,  1912  (37  Stat.,  571),  as 
amended  by  the  joint  resolution  of  the  same  date,  carries  a  proviso 
reading  in  part  as  follows: 

"On  and  after  December  15,  1912,  in  time  of  peace  whenever  any 
officer  holding  a  permanent  commission  in  the  line  of  the  Army  with 
rank  below  that  of  major  shall  not  have  been  actually  present  for 
duty  for  at  least  two  of  the  last  preceding  six  years  with  a  troop, 
battery,  or  company  of  that  branch  of  the  Army  in  which  he  shall 
hold  said  commission,  such  officer  shall  not  be  detached  nor  per- 
mitted to  remain  detached  from  srich  troop,  battery,  or  company,  for 
duty  of  any  kind;  *  *  *  nor  shall  anything  in  this  proviso  be 
held  to  apply  to  the  detachment  or  detail  of  officers  for  duty  in  the 
*     *     *     Ordnance  Department     *     *     *." 

IleJfL  that  a  captain  or  lieutenant  of  the  line  who  serves  under 
detail  in  the  Ordnance  Department  thereby  accumulates 'ineligi])ility 
for  detached  service  in  general;  that  in  determining  the  officer's 
eligibility  to  remain  on  duty  as  a  student  offi.cer  at  the  Coast  Ar- 
tillery School  and  therefore  away  from  his  company,  after  Decem- 
ber 15,  1912,  the  period  of  his  service  in  the  Ordnance  Department 
Avithin  the  last  preceding  six  years  must  be  taken  into  account;  and 
that  such  service  may  not  be  treated  as  service  with  a  company  of 
the  branch  in  which  he  is  commissioned. 

(6-010,  J.  A.  G.,  Oct.  14,  1912.) 


DISCHARGE:  For  disability  when  soldier  is  under  charge  of  desertion. 

A  soldier  was  enrolled  and  mustered  into  the  service  Febiiiary  27, 
1864;  deserted  March  27,  1864.  He  was  arrested  the  same  day,"con- 
hned  m  prison,  and  afterwards  sent  to  hospital,  all  the  while  being 


DIGEST   OF   oriNIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.        117 

held  as  a  deserter.  He  was  discharged  Decemher  5,  18G4,  on  sur- 
geon's certificate  of  disability  on  account  of  bronchitis,  incurred  after 
enlistment.  His  pay  accounts  were  suspended  on  account  of  deser- 
tion and  there  was  nothing  to  shoAV  that  he  was  relieved  of  the 
charge  or  had  been  placed  upon  military  duty  thereafter.  IlcJd,  that 
there  are  three  kinds  of  discharge  known  to  tlie  military  service: 
Honoi-able  discharge  for  honest  and  faithful  service,  disiionorablo 
discharge  in  pursuance  of  the  sentence  of  a  court-martial,  and  dis- 
charge without  honor  occupying  a  middle  ground  between  the  other 
I  wo  and  given  where,  for  certain  reasons  due  to  the  soldier's  fault, 
he  can  not  be  honorably  discharged;  and  that  while  the  soldier  was 
held  under  a  charge  of  desertion,  without  restoration  to  duty,  lie 
was  in  a  status  of  dishonor  and  could  not  l)e  honorably  discharged. 
His  discharge  was.  therefore,  one  without  honor. 
(28-214,  J.  A.  G.,  Dec.  21,  1912.) 


EIGHT-HOUR  LAW:  Contracts  for  the  construction  of  wagons  for  the 
Army  according  to  specifications  unfitting  them  for  use  by  the  general 
public. 

On  consideration  of  the  question  as  to  whether  or  not  the  act  of 
June  19,  1912  (37  Stat.,  137),  relative  to  the  application  of  the  eight- 
hour  law  for  laborers  and  mechanics  engaged  on  (4ovei-nuient  con- 
tracts, applied  to  contracts  for  the  construction  of  chess  wagons, 
t<;ol  wagons,  and  pontoon  wagons  which  by  reason  of  their  manu- 
facture according  to  Government  specifications  are  unsuitai)le  for 
general  use  by  the  public  and  are  not  therefore  ordinarily  to  be  pur- 
chased in  open  market.  Held.,  that  while  Avagons  manufactui-ed 
for  the  Government  for  the  purposes  indicated  can  not  be  purchased 
in  open  market  such  vehicles  come  Avithin  the  exce])tion  in  the  law 
which  permits  contracts  to  be  made  without  conforming  to  its  re- 
((uirements  "  for  such  materials  or  articles  as  may  usually  be  bought 
in  open  market  *  *  *  whether  made  to  conform  to  particular 
specifications  or  not,"  and  that  specifications  which  make  articles 
u.nsuitable  for  general  use  or  for  other  than  military  use  do  not  l)nng 
them  Avithin  the  operation  of  the  laAV. 

(32-313,  J.  A.  G.,  Dec.  10,  1912.) 


ENLISTED  MEN:  Reduction  in  rank  of  a  noncommissioned  officer  on 
charge  of  desertion. 

A  quartermaster  sergeant  absented  himself  Avithout  leave,  was 
reported  as  a  deserter,  and  was  dropped  from  the  rolls  as  surh.  \W 
subsequentlv  surrendered  himself  to  the  military  authorities,  and 
the  charge  of  desertion  against  him  was  set  aside,  under  orders  from 
division  headquarters,  as  having  been  erroneously  made.  I^olUnvrng 
his  return  to  duty  he  was  officially  recognized  as  a  sergeant  an.t  per- 
formed the  duties  of  that  irrade  from  the  date  of  his  return,  nmi- 
eraph  277,  Armv  Regulations,  1910.  provides,  tnter  aha.  that  i  he 
desertion  of  a  noncommissioned  officer  vacates  his  position  from  the 
date  of  his  unauthorized  absence."  i      •  ,„ 

Held,  that  the  order  setting  aside  the  charge  of  desertion  "^  having 
been  erroneously  made  was  un  authoritative  determination  that  the 


118       DIGEST  OF   OPINIOXS  OF    THE   JUDGE   ADVOCATE   GENERAL. 

soldier  Avas  not  a  deserter:  and  tliat  paragraph  277,  Army  Eegu- 
lations,  has.  therefore,  no  application  to  this  case.  Held  fvrtlier, 
that  as  no  action  appears  to  have  been  taken  by  competent  authority 
to  reduce  the  soldier  to  the  ranks,  and,  as  his  warrant  as  sergeant 
was  not  vacated  as  the  result  of  his  unauthorized  absence,  any  pay 
to  which  he  mav  have  become  entitled  since  his  return  to  duty  should 
be  computed  upon  the  basis  of  the  pay  of  the  grade  of  sergeant. 

(26-520,  J.  A.  G.,  Dec.  17,  1912.)  _ 

j^'oTE. — This  case  is  to  be  distinguished  from  that  digested  in  Dig. 
Ops..  J.  A.  G,,  1912,  p.  113.  1,  since  it  did  not  appear  in  that  case  that 
the  designation  of  tlie  soldier  as  a  deserter  was  an  error. 


ENLISTMENT:   Making  good  time  lost  while  absent  without  leave;  com- 
puting service  after  expiration  of  enlistment. 

A  soldier  was  absent  without  leave  for  various  periods  exceeding 
one  day  and  spent  a  c()nsiderable  time  in  confinement  as  punishment 
for  such  unauthorized  absences,  all  during  the  period  of  his  enlist- 
ment. After  the  expiration  of  his  term  of  enlistment  and  while 
making  good  time  lost,  lie  absented  himself  without  leave  on  various 
occasions  and  was  in  confinement  for  various  periods  awaiting  trial 
and  serving  sentences  on  account  thereof.  The  act  of  May  11,  1908 
(3o  Stat,  109),  provides  that— 

"An  enlistment  shall  not  be  regarded  as  complete  until  the  soldier 
shall  have  made  good  any  time  lost  during  an  enlistment  period  by 
unauthorized  absences  exceeding  one  day." 

lleUh  that  the  soldier  should  make  good  the  time  lost  by  his  unau- 
thorized absences  exceeding  one  day  during  his  enlistment  period, 
but  is  not  required  to  make  good  time  spent  in  confinement  awaiting 
trial  or  undergoing  punishment  therefor.  Held  further^  that  in 
making  good  time  lost  during  his  enlistment  by  such  unauthorized 
absences  the  soldier  is  not  entitled  to  count  time  absent  without  leave 
after  his  enlistment  has  expired  or  time  spent  in  confinement  on  ac- 
count of  such  absence. 

(34-052,  J.  A.  G.,  Oct.  11.  1912.) 


ENHOLLMENT:  Date  of.   for  United  States  service,   of  a  soldier  of  Com- 
pany D.  Eighth  Pennsylvania  Reserves,  Civil  War. 

A  soldier  of  Company  D,  Eighth  Pennsylvania  Reserves,  was 
shoAvn  b}^  the  muster-in  roll  to  ha\e  been  mustered  into  the  United 
States  service  with  his  company  at  Washington,  D.  C.  July  29,  1861, 
said  roll  also  showing  that  all  members  of  the  company  with  a  few 
exceptions  were  enrolled  May  1,  1861.  at  Brownsville,  Pa.  The  first 
bimonthly  nuister  roll  thereafter,  dated  xVugust  31,  1861,  showed  all 
members  of  the  company  to  have  been  enrolled  June  15,  1861,  at 
Pittsburgh,  Pa.,  and  all'  subsequent  muster  rolls  to  June  30,  1862, 
gave  the  same  date  to  the  soldier's  enrollment.  All  muster  rolls 
after  June  30,  1862,  gave  the  date  of  the  soldier's  enrollment  as 
May  1,  1861.  He  was  paid  by  the  United  States  from  July  21,  1861, 
inclusive.  The  State  was  aftei-wards  reimbursed  by  the  T^'nited 
States  for  the  payment  of  the  soldier  from  ISIay  1  to  July  20,  1861. 


DIGEST   OF   OPINIOXS   OF    THE   JUDGE   ADVOCATE   GENERAL.       119 

On  April  15.  18C1,  the  President  called  foitli,  for  three  months. 
75,000  of  the  militia  of  the  several  States.  May  1.  1801,  may  be 
presumed  to  be  the  date  when  l*ennsylvania*s  (|Uota  reported  at  the 
rendezvous.  It  appears  that  the  number  so  reporting  exceeded  the 
quota,  that  the  governor  retained  the  excess  and  oiganized  them 
into  additional  companies,  and  that  this  soldier  "joined*"  one  of 
such  companies  on  that  date.  On  May  15,  1801,  the  State  provided 
by  law  for  the  organization  of  a  reserve  corps  composed  of  the^^e 
additional  companies,  the  members  of  which  were  reqniied  to  be 
enlisted  in  the  service  of  the  State  for  a  period  not  to  exceed  tbn-e 
years  or  during  the  war,  unless  sooner  discharged,  and  were  liable 
to  be  called  into  the  service  of  the  United  States.  The  soldier  with 
others  of  his  company  went  into  camp  of  instruction  at  Camj) 
Wright,  Pa.,  on  June  15,  1861,  and  was  sworn  and  mustiM-i'd  into 
the  service  of  the  State  June  21  following.  The  corps  as  organized 
was  tendered  to  the  General  (iovernment  but  was  refused  for  the 
reason,  among  others,  that  the  governor  insisted  upon  the  acceptance 
of  the  whole  corps  with  its  major  general  and  staff  officers.  Finally, 
in  response  to  a  a  request  from  the  Secretary  of  War  dated  July  Ki, 
1861,  the  company  on  July  21,  1861,  left  the  canq)  to  which  it  had 
been  ordered  by  the  State  authorities  and  proceeded  to  "Washing- 
ton, D.  C,  where  it  arrived  on  July  23,  and  was  mustered  into  tlie 
United  States  service  as  stated.     Under  these  conditions  it  is  hrld — 

1.  That  where  the  rolls  of  a  company  are  conflicting *as  to  date 
of  a  soldier's  enrollment,  the  circumstances  attending  the  enrollment 
of  the  organization  to  which  he  belonged,  including  the  date  when 
he  was  taken  up  by  the  United  States  for  payment,  will  be  taken 
into  consideration  in  determining  the  true  date  of  enrolhnent. 

2.  Where,  during  the  Civil  \\-av.  forces  were  raised  by  the  State 
for  its  own  purposes  and  for  the  additional  purpo.^^e  of  meeting  calls 
from  the  Federal  Government  .should  they  be  made,  such  forces, 
if  subsequently  called  for  and  accepted  by  the  Ignited  States,  should 
be  regarded  as  having  been  enrolled  for  the  Ignited  States  service 
from  the  date  when  they  proceeded  to  comply  with  the  call. 

3.  That  the  soldier  iii  this  case  should  be  regarded  as  enrolled  for 
the  United  States  service  from  July  21.  1801,  inclusive,  when  his 
company  proceeded  to  comply  with  the  call  of  the  Secretary  of  War 
of  July"  13,  1861,  from  whicli  date  inclusive  the  soldier  was  paid  by 
the  United  States. 

(08-111,  J.  A.  G.,  Xov.  12,  1012.) 


FORAGE  ALLOWANCE:  Eor  extra  horse  for  oificer  while  attending  riding 
school  abroad. 

A  second  lieutenant  who  had  been  detailed  to  take  a  course  of  in- 
struction for  one  year  at  the  Imperial  Kiding  School  in  (iermany, 
requested  to  be  allowed  to  draw  forage  and  other  allowances  tor- 
three  mounts,  he  havino-  been  required  to  express  his  intention  of 
providing  himself  with'three  serviceable  mount?  prior  ti)  his  being 
ordered  to  said  station.  HeU,  that  under  existing  law  forage  can 
not  be  allowed  for  more  than  two  mounts  in  this  case,  being  the 
number  for  which  forase  can  be  issued  a^  prescribed  by  section  l> 
of  the  act  of  Jime  18,  1878  (20  Stat..  150). 

(72-351.  J.  A.  G.,  Xov.  16,  1012.) 


Of 


120       DIGEST    OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

HEAT  AlTD  LIGHT  ALLOWANCE:   Furnishing-  same  to  families  of  Army 
officers  temporarily  absent  from  their  station  or  serving  abroad. 

The  authority  for  furnishing  hesit  and  light  to  officers  of  the 
Army  is  found  in  the  act  of  March  2,  1907  (34  Stat.,  1167),  as 
follows: 

"  Hereafter  the  heat  and  light  actually  necessary  for  the  author- 
ized alloAvance  of  quarters  for  officers  and  enlisted  men  shall  be 
furnished  at  the  expense  of  the  United  States  under  such  regula- 
tions as  the  Secretary  of  War  mav  prescribe." 

The  act  of  February  27,  1893  (27  Stat.,  480),  provides: 

"  Hereafter  officers  temporarily  absent  on  duty  in  the  field  shall 
nft  lose  their  right  to  quarters  or  commutation  thereof  at  their 
permanent  station  while  so  temporarily  absent." 

The  Army  Regulations  provide  for  fuel  allowances  to  be  issued 
for  heating  the  authorized  quarters  of  officers,  and  also  for  allow- 
ances of  gas  and  of  electricity  for  lighting  the  same. 

Paragraphs  1053  and  1073,  Army  Regulations,  provide  for  the 
issue  of  said  allowances  to  families  of  officers  "  who  are  temporarily 
absent,  or  who  are  on  duty  abroad  or  in  Alaska." 

An  officer  ordered  to  duty  in  the  Hawaiian  Islands,  as  his  regular 
station,  desired  to  have  his  heat  and  light  allowances  issued  to  his 
family  residing  in  Washington,  D.  C.  The  question  was  also  pre- 
sented as  to  whether  the  fuel  allowance  could  be  issued  to  families 
of  officers  serving  with  troops  at  Camp  Fort  Bliss,  Tex.,  away  from 
the  stations  where  they  had  theretofore  been  serving.  Held^  that 
under  the  law  and  regulations  an  officer  absent  from  his  station  on 
temporary  duty  or  serving  abroad  or  in  Alaska,  may  have  his  heat 
and  light  allowances  issued  to  his  family  residing  in  the  United 
States  proper  upon  his  certificate  that  such  allowances  will  not  be 
otherwise  drawn  by  him,  and  upon  a  showing  that  the  quarters 
actually  occupied  by  him  are  not  heated  and  lighted  at  Government 
expense;  and  that  an  officer  serving  in  Hawaii  is  serving  abroad 
within  the  meaning  of  the  regidations  and  may  have  such  allowances 
issued  to  his  family  in  the  United  States  under  the  conditions  above 
stated.  Held  further^  that  if  officers  serving  at  Camp  Fort  Bliss, 
Tex.,  are  only  temporarily  separated  from  their  permanent  stations, 
their  heat  and  light  allowances  may  be  supplied  to  their  families 
either  at  their  permanent  stations  or  elsewhere  upon  the  certificates 
and  showing  above  stated,  but  that  if  their  permanent  station  is  at 
the  place  where  they  are  serving,  such  allowances  can  not  be  supplied 
to  their  families  separately,  as  the  regulations  make  no  provision 
therefor. 

(92-310,  J.  A.  G.,  Dec.  26  and  27,  1912.) 


OTDIAN   COUNTRY:   Introduction   of   intoxicating   liquors   into;   shipment 
of  Avine  for  sacramental  purposes. 

The  act  making  appropriation  for  the  expenses  of  the  Bureau  of 
Indian  Affairs,  approved  August  24,  1912  (37  Stat.,  519),  provides: 

"Hereafter  it  shall  not  be  unlawful  to  introduce  and  use  wnnes 
solely  for  sacramental  purposes,  imder  church  authority,  at  any  place 
within  the  Indian  country  or  any  Indian  reservation." 


DIGEST   OF   OPINIONS  OF    THE   Jl'DGE   ADVOCATE   GENERA  1.        121 

On  application  by  a  minister  of  a  church  at  Muskogee,  Okla.,  for 
a  permit  for  the  shipment  of  wine  for  sacramental  purposes.  Jhhl^ 
that  this  act  does  not  require  that  a  person  introducing  wine  into  the 
Indian  Country  for  sacramental  purposes  shall  ohtain  a  permit  from 
the  War  Department,  nor  does  it  authorize  said  department  to  issue 
such  a  permit;  and  the  War  Department  under  the  circumstances 
must  decline  to  issue  the  same. 

(48-223,  J.  A.  G.,  Nov.  4,  1912.) 


INDIAN    COUNTIIY:    Introduction    of    intoxicating    liquors   into    for    pur- 
poses of  sale. 

On  application  for  a  permit  to  introduce  liquor  for  sale  for  medici- 
nal purposes  into  Melletto  County,  S.  Dak.,  formerly  a  portion  of 
the  Rosebud  Indian  Reservation  in  which  the  same  laws  relative  to 
the  introduction  of  intoxicating  liquors  into  Indian  Country  prevails 
for  a  period  of  25  years  from  May  30,  1910,  date  of  the  act  providing 
for  the  disposal  of  portions  of  said  reservation.  Ileld^  that  the  au- 
thority to  grant  permits  for  the  introduction  of  liquor  into  Indian 
Country  given  by  section  2139,  Revised  Statutes,  as  amended.  <Ioes 
not  extend  to  the  granting  of  such  permits  for  the  introduction  of 
said  liquors  for  purjx'ses  of  sale. 

(48-221,  J.  A.  G.,  Nov.  5,  1912.) 


INSIGNIA  OF  MERIT:   Congressional  medals  of  honor;  evidence  required 
of  alleged  distinguished  service. 

A  man  who  had  been  a  corporal  in  the  Army  during  the  Civil  War 
recently  applied  for  a  medal  of  honor  under  the  ])rovisions  of  secti(»n 
0  of  the  act  of  March  3, 1863  (12  Stat.,  751),  for  distinguished  service 
in  action,  and  in  support  of  his  application  offered  his  own  unsworn 
statement  containing  an  account  of  alleged  distinguished  service 
upon  two  different  occasions  during  the  Civil  War.  and  a  paiier  writ- 
ing purporting  to  shovs^  that  the  truth  of  said  statement  had  been 
sworn  to  by  three  foi-mer  soldiers.  Ileld^  following  a  prior  well- 
considered  "opinion  of  this  office,  that  the  only  evidence  of  distin- 
guished service  that  may  now  be  made  the  basis  of  an  award  of  a 
medal  of  honor  under  s'aid  section  6  are  the  official  records  of  the 
War  Department,  and  that  as  the  official  records  in  this  case  con- 
tained only  the  statement  that  the  applicant,  on  the  occasion  of  the 
assault  upon  the  enemy's  works  in  front  of  Petersburg  on  July  30, 
1864,  "here  captured  Colonel  Brown  commanding  a  bi-igade  of  the 
enemy,"  w^hich  act  of  itself  did  not  constitute  such  distingnisht-d 
service  as  to  entitle  him  to  a  medal  of  honor,  the  award  should  not  be 
made. 

(46-111,  J.  A.  G.,  Dec.  19, 1912.) 


LAND:   Subjacent  support  where  land  is  burdened  by  structures. 

It  was  reported  that  the  private  owner  of  property  adjacent  to  the 
First  Avenue  Gate  of  the  Presidio,  San  Francisco,  had  given  notice 
that  he  was  excavating  for  a  residence  and  that  he  had  advised  the 


122       DIGEST   OF   OPIXIOXS   OF   THE   JUDGE   ADVOCATE   GEXEEAL. 

commanding-  officer  to  take  stens  to  secure  tlie  resei-.  ation  wall.  ayIucIi 
was  thereby  in  danger  of  falling.  Eeld^  that  under  the  law  in  force 
in  the  State  of  California  with  reference  to  subjacent  support  from 
adjoining  land,  which  is  substantially  the  same  as  the  common  law 
and  the  law  in  force  at  the  time  the  Government  became  possessed 
of  said  reservation,  the  duty  of  the  land  owner  to  furnish  lateral  sup- 
port to  adjoining  land  does  not  extend  to  the  additional  support  re- 
Vjuired  by  reason^^of  structures  placed  thereon,  and  that  the  additional 
v,'ork  required  to  support  the  soil  burdened  by  the  wall  of  the 
Presidio  should  be  provided  at  the  expense  of  the  Government  if  it 
is  desired  to  secure  the  premises  against  damage  from  such  excava- 
tion. 

(SO-260,  J.  A.  G..  Dec.  20,  1012.) 


LINE  OF  DUTY:   Assuming'  command  while  absent  without  leave. 

A  sergeant,  in  company  with  other  enlisted  men,  left  his  post  with- 
out leave,  secured  a  launch,  and  proceeded  to  a  nearby  town,  where 
some  of  the  party  became  involved  in  a  quarrel  with  civilians.  Acting 
under  authority'  of  his  rank,  he  directed  the  enlisted  men  to  stx^p 
fighting  and  to  go  aboard  the  launch,  which  they  did.  The  sergeant 
took  no  part  in  the  quarrel  except  to  endeavor  to  pacify  the  parties. 
After  the  launch,  with  the  party  of  enlisted  men  on  board,  had  pro- 
ceeded about  25  feet  from  the  dock  a  shot  was  fireil  from  the  crowd 
of  civilians  who  had  collected  on  the  dock.  This  shot  took  effect  in 
the  face  of  the  sergeant,  resulting  later  in  his  death.  The  24th 
Article  of  War  provides  that — 

'"All  officers,  of  what  condition  soever,  haAe  power  to  part  and  quell 
all  quarrels,  frays,  and  disorders,  whether  among  persons  belonging 
to  his  own  or  to  another  corps,  regiment,  troop,  battery,  or  com- 
pany, and  to  order  officers  into  arrest,  and  noncommissioned-  officers 
and  soldiers  into  confinement,  who  take  part  in  the  same,  until  their 
proper  suj^erior  officer  is  acquainted  therewith.  And  whosoever,  be- 
ing so  ordered,  refuses  to  obey  such  officer  or  noncommissioned  officer, 
or  draws  a  Aveapon  upon  him,  shall  be  punished  as  a  court-martial 
may  direct." 

Held.)  that  notwithstanding  the  fact  that  the  sergeant  was  in  the 
status  of  absence  without  leave  at  the  time  he  received  the  wound 
which  later  caused  his  death,  said  Article  of  War  applies  in  his  case, 
and  that  as  he  was  properly  in  the  discharge  of  his  duty  under  said 
article,  at  the  time  he  received  his  injury,  he  was  in  the  line  of  duty 
and  his  death  should  not  be  regarded  as  the  result  of  his  own  mis- 
conduct. 

(42-101,  J.  A.  G.,  Xov.  30,  1912.) 


I>TILITIA:  Radio  communication;  act  of  August  13,  1912. 

Section  1  of  the  act  of  August  13,  1912  (3T  Stat.,  302),  regulating 
radio  communication  provides  that  the  license  pro\  idecl  for  in  said 
act  "  shall  not  be  required  for  the  transmission  or  exchange  of  radio- 
grams or  signals  by  or  on  behalf  of  the  Government  of  the  United 

States." 


DIGEST   OF    OPIXIOXS   OF    THE    JUDGE    ADVOCATE    GENERAL.        1'23 

Section  4  piescribes  as  a  restriction  on  ''private  stations"  tliat  no 
siK-li  station  ''shall  use  a  transniittinir  wave  ientrtli  oxci'eilin"  t\\.» 
luindred  meters,  or  a  transformer  input  exceedin*^  one  kilowaU.  c-\- 
cept  by  special  authority  of  the  Secretary  of  Commerce  antl  Labor 
contained  in  the  license  of  the  station."' 

The  radio  sets  supplied  to  the  militia  by  the  A\'ar  Department  Km^i- 
a  wave  lenj^th  of  about  600  meters,  and  it  is  desired  to  in.stall  a  pei-- 
manent  station  for  the  signal  corps  of  the  Ohio  State  militia  with 
power  in  excess  of  one  kilowatt.  Held.  ha\  iiiir  in  view  the  powers 
vested  in  Congress  over  the  militia  of  the  States  and  tbe  U-gi-laticui 
of  Congress  relating  to  that  subject,  that  radio  s-tations  for  tbe  in- 
struction of  the  militia  should  not  be  regarded  as  "  private  stations.** 
but  as  stations  operated  "on  behalf  of  the  (iovernmeiit  of  tbe  I'liited 
States  ""  witliin  the  meaning  of  the  provi'-'o  to  section  1  of  '-mi. I  n.t. 

(.■)S-950,  J.  A.  G.,  Oct.  12,  1912.) 


MOUNTED    SERVICE:   Supplying   mounts   to   officers   below   the   grade   of 
major  while  serving  abroad  on  duty  requiring  mounts. 

Two  captains  of  Coast  Artillery  were  serving  under  assignment 
with  French  regiments  which  required  that  othcers  serving  tberewitb 
should  be  mounted,  and  the  question  arose  as  to  whether  mounts 
might  not  lawfully  be  provided  for  them  while  under  sucii  assign- 
ment. It  was  not  deemed  advisable  by  the  Gqvernment  to  transport 
the  mounts  provided  by  these  officers  to  the  places  v.here  they  were 
serving. 

By  the  act  of  May  11,  1908  (35  Stat..  108).  the  United^  States  en- 
gages to  furnish  mounts  to  all  officers  below  the  grade  of  major  re- 
quired to  be  mounted,  but  it  is  provided  that  if  such  officers  furnish 
their  own  mounts  they  shall  receive  additional  pay.  Tbe  act  of 
August  24,  1912  (37  Stat.,  581),  also  provides  for  tbe  pnrchaH*  of 
horses  "for  remounts  of  officers  entitled  to  public  mounts,"'  with  tho 
proviso  that  the  number  of  horses  purchase<l,  with  the  nmnl)er  on 
band,  "shall  be  limited  to  the  actual  needs  of  the  moiinted  service."' 

Held,  that  under  the  conditions  here  stated  the  Government  miglit 
lawfully  provide  mounts  for  the  officers  in  question  if  their  duties 
required  them  to  be  moimtcd. 

(94-011.  J.  A.  G.,  Dec.  21.  1912.) 


IsTEGOTIABLE   INSTRUMENTS:  Payment  of  stolen  check  when  indorsed 
in  blank  and  in  the  hands  of  an  innocent  purchaser. 

An  officer's  official  pay  check  was  indorsed  in  bbuik  :uid  delivered 
to  another  officer  in  payment  of  an  account,  an<l  without  further  in- 
dorsement was  stolen  and  sul)sequently  discounted  by  an  ninocent  pur- 
cliaser.  Held,  that  the  ciieck  so  indorsed  l)ecame  a\ailalth'  for  ti-ans- 
ier  by  anyone  into  whose  hands  it  might  fall,  and  tluit  an  ninocent 
pu.rchaser^  takino-  the  pai)er  in  good  faith  in  the  oicbnary  course  of 
business  would  obtain  a  good  title  thereto,  notwithstanding  it  might 
have  been  stolen  from  the  real  owner. 

(52-011,  J.  A.  G..  Oct.  5,  1912.) 


124       DIGEST    OF   OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL. 

PANAMA  CANAL:  Sending  a  board  of  officers  or  employees  of  the  United 
States  to  Guayaquil,  Ecuador,  to  investigate  and  report  upon  the  sani- 
tary conditions  of  a  foreign  port. 

It  having  been  suggested  that  an  officer  of  the  Medical  Corps  of  the 
Army  with  certain  employees  of  tlie  Isthmian  Canal  Commission  be 
sent  to  the  port  of  (inayaquil,  Ecuador,  and  employed  in  connection 
with  a  plan  of  sanitation  of  said  port,  and  it  further  appearing  that 
the  Government  of  Ecuador  Avas  prepared  to  meet  the  whole  or  a 
portion  of  the  expenses  connected  with  such  work,  IlelcU  that  there 
is  no  legal  objection  to  the  action  of  the  Secretary  of  War  in  ordering 
an  Army  medical  officer,  or  to  the  action  of  a  chairman  of  the  Isth- 
mian Canal  Commission  in  ordering  necessary  civilian  employees 
serving  under  him,  to  said  city  for  the  purpose  of  examining  into  the 
sanitary  conditions  thereof,  and  of  suggesting  a  method  of  sanitation 
therefor  and  also  of  making  a  report  to  the  United  States,  all  at  the 
expense  of  the  United  States ;  but  no  officer  of  the  Army  nor  any  civil 
employee  of  the  United  States  may,  without  authority  of  Congress, 
accept  any  pay  or  emolument  from  an}'  foreign  government,  and 
there  is  no  method  Avhereby  a  foreign  government  may  pay  the 
United  States  for  the  use  of  its  oificers  or  employees,  although  such  an 
arrangement  might  be  made  bv  treaty. 

(64-313,  J.  A.'^G.,  July  8,  1912.) 


PATENTED  INVENTIONS:   Use  by  the  United  States  of  inventions  pat- 
ented by  employees  of  the  Government. 

An  engineer  officer  of  the  United  States  devised  and  patented  a 
reinforced  concrete  pile  while  such  officer,  but  developed  his  patent 
at  his  own  expense  and  at  times  outside  of  his  regular  work  under 
the  Engineer  Department.  The  act  of  Congress  approved  June  25, 
1910  (30  Stat.,  851 ),  authorizes  suits  to  be  brought  against  the  United 
States  for  the  infringement  of  patent  rights,  with  the  proviso  that 
the  act  shall  not  "  apply  to  any  device  discovered  or  invented  by  an 
employee  of  the  United  States  during  the  time  of  his  employment 
or  service." 

Held,  that  where  a  person  in  the  employ  of  the  Government  not 
specifically  employed  for  the  purpose,  at  his  oAvn  expense  and  outside 
of  his  regular  working  time  for  the  Government,  makes  and  patents 
an  invention,  he  is  entitled  to  the  benefit  thereof  when  used  by  the 
Government  and  may  be  paid  a  royalty  therefor,  although  he  can 
not  sue  the  United  States  for  infringement. 

(70-340,  J.  A.  G.,  (3ct.  16,  1912.) 


PAY  CLERKS:   Official  status  of,  in  the  Army;  right  to  purchase  ordnance 
stores. 

On  application  for  a  decision  as  to  wiiether  Army  pay  clerks  are 
officers  of  the  Army  within  the  meaning  of  the  statutes  and  regula- 
tions so  as  to  entitle  them  to  piu'chase  ordnance  stores  for  their  own 
use.  Held,  that  a  pay  clerk  in  the  Army  occupies  a  military  status 
and  must  be  deemed  an  officer  of  the  Army  in  the  sense  that  he  has  a 
military  status  and  is  not  an  enlisted  man  or  cadet,  although  not  a 
commissioned  officer;  and  as  there  is  nothing  in  the  statutes  or  regu- 


DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATF    GENERAL.        125 

lations  providing  for  the  sale  of  ordnance  stores  to  officers  for  their 
own  use  in  the  service  which  woukl  limit  the  sale  to  conunissi.uied 
ofhcers,  pay  clerks  are  entitled  to  purchase  ordnance  stores  for  their 
own  use  in  the  military  service. 
(80-136,  J.  A.  G.,  Oct.  25,  1912.) 


PAY    CLERKS:   Retirement    of,    for    disability    originating    prior    to    act 
authorizing'  such  retirement. 

An  examining  board  found  a  pay  clerk  of  the  Armv  incapacitated 
for  active  service,  said  incapacity  having  oiiginateil  prior  to  the 
passage  of  the  act  of  March  3,  1911  (30  Stat..  1044).  giving  such 
clerks  the  same  pay  and  alloAvances  as  Navy  paymasters'  clerks  on 
shore  duty,  together  with  the  same  right  to  retirement  and  retired 
pay  as  is  allowed  such  Navy  paymasters'  clerks.  IhJd,  that  tiie 
effect  of  said  act  of  March  3,  1911,  is  to  recognize  the  service  of 
Army  paymasters'  clerks  prior  to  March  3,  1911,  as  service  within 
the  meaning  of  sections  1453  and  1454,  Revised  Statutes,  and  that  the 
retirement  of  the  clerk  may  be  based  upon  disability  incurred  while 
engaged  in  such  prior  service. 

(6-134,  J.  A.  G.,  Dec.  27,  1912). 


PUBLIC  LANDS:  Leases  of. 

Section  9  of  the  river  and  harbor  act  of  March  3.  1909  (35  Stat, 
819),  gives  the  Secretary  of  War  authority  to  grant  leases  or  licenses 
not  exceeding  20  years  in  duration  "  for  the  occupation  of  such  land 
belonging  to  the  IJnited  States  on  "  the  Wabash  River.  111.,  "as  may 
be  required  for  mill  sites  or  other  industrial  purposes  not  inconsistent 
with  the  requirements  of  navigation." 

Application  was  made  for  a  lease  of  a  portion  of  the  property  of 
the  United  States  at  the  lock  and  dam  in  the  Wabash  River  at  Mt. 
Carmel,  111.,  foV  the  purpose  of  drilling  for  oil  and  gas.  Ilcld,  that 
the  term  "  other  industrial  purposes  "  contained  in  the  above  act  must 
be  construed  in  connection  with  the  associated  item  "mill  sites" 
which  it  follows,  and  the  authority  to  lease  for  such  purposes  must 
be  restricted  to  mill  sites  or  other  manufacturing  purposes  having 
some  relation  to  the  utilization  of  water  power,  and  that  the  statute 
does  not  c'ive  authoritv  to  lease  for  the  purposes  applied  for. 

(80-72'3,  J.  A.  a,  Oct.  14, 1912.) 


PUBLIC  PROPERTY:  Protection  of,  in  the  construction  of  an  emergency 
levee. 
Owing  to  the  subsidence  of  a  levee  in  front  of  a  military  reserva- 
tion at  Jackson,  Miss.,  it  became  imperative  to  construct  an  enu-r- 
gencv  levee  across  a  portion  of  the  reservation  and  to  utilize  a  i>oiti..n 
thereof  as  a  base  for  such  levee,  and  also  to  destroy  or  remove  ceitam 
buildings  on  the  reservation.  Held,  that  as  the  property  was  to  Ik; 
taken  for  the  protection  not  only  of  the  i)ublic  but  also  of  Govern- 
ment property,  the  levee  commissioners  of  the  district  might  lawfully 
be  authorizecf  to  construct  the  proposed  work,  but  that  the  laying  <Mit 


126   DIGEST  OF  OPIXIOXS  OF  'THE  JUDGE  ADVOCATE  GENEKAL. 

of  a  street  through  the  reservation  to  replace  another  one  should  be 
submitted  to  Congress  for  authorization. 
(S0-81G.T,  J.  A.  G.,  Nov.  12,  1912.) 


QUARTEBMASTER  CORPS:   Appropriations  for.  the  three  constituent  de- 
partments; availability  for  the  consolidated  corps. 

The  Army  approjiriation  act  of  August  24,  1912,  made  separate 
appropriations  for  subsistence  under  the  head  of  the  Subsistence 
Department  and  for  regular  supplies  under  the  head  of  the  Quarter- 
master's Department  in  language  similar  to  that  empioj^ed  in  mak- 
ing appropriations  for  the  same  purposes  in  previous  years.  (37 
Stat.,  578  and  579.)  The  subsistence  Department  and  the  Quarter- 
master's Department,  together  with  the  Pay  Department,  Avere  by 
the  same  act  consolidated  into  the  Quartermaster  Corps,  and  it  was 
further  provided  (p.  591)  that — 

"  The  appropriations  herein  provided  for  the  several  departments 
consolidated  in  this  act  shall  l)e  a^'ailable  for  the  consolidated-corps 
herein  created." 

Upon  consideration  of  the  question  of  the  method  of  expending  the 
appropriations  for  subsistence  and  for  regular  supplies,  in  view  of 
the  consolidation  and  in  view  of  the  provision  with  reference  to  the 
availal)ility  of  the  separate  appropriations.  Advised,  that  the  more 
specific  language  used  in  one  appropriation  would  not  operate  to 
exclude  the  use  of  the  other  appropriation,  which  might  provide  for 
the  same  object  in  more  general  terms,  but  that  as  the  needs  of  the 
consolidated  corps  are  now  the  same  as  those  of  the  three  constitu- 
ent departments,  the  appropriations  made  separately  for  each  de- 
partment are  now  available  for  all.  Advised  further,  that  where 
the  language  of  either  of  the  appropriations  fairly  covers  an  object, 
it  may  be  used  for  that  ol^ject,  regardless  of  whether  such  o'oject  was 
formerly  under  the  administration  of  the  department  for  which  the 
appropriation  to  be  used  was  originallv  made  or  not. 

(6-221.  J.  A.  G.,  Nov.  19,  1912.) 


QUARTERMASTER  CORPS:  Duties  therein;  availability  of  line  officers  for. 

Section  3  of  the  act  of  August  24.  1912  (37  Stat.,  591-593),  after 
proAiding,  inter  alia.,  for  the  consolidation  of  the  office  establish- 
ments of  the  Quartermaster  General,  the  Commissary  General,  and 
the  Paymaster  Gen*eral  of  the  Army  into  a  single  bureau  of  the  War 
Department:  for  the  consolidation  of  the  Quartermaster's,  Subsist- 
ence, and  Pay  Departments  of  the  Arm}"  into  a  single  corps  to  be 
known  as  the  Quartermaster  Corj^s  of  the  Army ;  and  for  an  ultimate 
reduction  in  the  ninnber  of  officers  who  originally  constitute  the 
Quartermaster  Corps  as  a  result  of  the  consolidation,  continues: 

'■'■Provided  fvrther,  that  whenever  the  Secretary  of  War  shall  de- 
cide that  it  is  necessary  and  practicable,  regimental,  battalion,  and 
squadron  quartermasters  and  commissaries  shall  be  required  to  per- 
form any  duties  that  junior  officers  of  the  Quartermaster  Corps  may 
properly  be  I'equired  to  perform,  and  regimental  and  battalion  quar- 
termaster and  commissary  sergeants  shall  be  i^equired  to  perform  any 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       127 

duties  that  noncommissioned  officers  or  ]iay  clerks  of  the  Quarter- 
master Corps  luay  properly  Ije  reciuired  to' perform,  hut  such  regi- 
mental, battalion,  and  squadron  quartermasters  and  commissaries 
shall  not  be  required  to  receipt  for  any  money  or  property  which 
does  not  pertain  to  tlieir  respective  rejriments.  battalions,  or  scpuul- 
rons,  and  they  shall  not  l)e  separated  from  the  oiganization  t..  wli^h 
they  belong :    *    *    * " 

Held,  that  although  the  clause  'Svhenever  the  Secretary  of  War 
shall  decide  that  it  is  necessary  and  practicable,  regimental,  bat- 
talion, and  squadnm  quartermasters  an<l  comuiissaries  shall  be  re- 
quired to  perform  any  duties  that  junior  oHicers  of  the  Quarter- 
master Corps  may  properly  be  required  to  pei-form,''  is  affirmative 
in  form,  its  effect  is  prohibitive  as  well  as  affirmative:  that,  giving 
the  broadest  application  to  the  implied  prohibition,  it  would  serve 
to  forbid  the  detail  of  any  officers  except  those  specifically  mentione<l 
in  the  clause  to  perform  duties  that  officers  of  the  Quarleruiaster 
Corps  may  properly  be  required  to  perform,  but  that,  as  the  affirma- 
tive provision  relates  only  to  officers  belonging  to  branches  of  the 
Army  which  have  a  regimental,  battalion,  or  squadron  organization, 
the  implied  prohibition  should  be  construed  as  relating  only  to  tlw 
same  branches;  that  the  legislation  under  consideration  does  not  af- 
fect the  availability  of  any  officers  for  Quartermaster  Corps  duty 
except  those  belonging  to  the  mobile  branches  of  the  line  of  the 
Army,  and.  therefore,  all  officers,  except  those  belonging  to  the  mobile 
branches  of  the  line,  may  continue  hereafter,  as  herelofoi-e,  to  be 
employed  upon  Quartermaster  Corps  duties,  including  the  duties  of 
post  quartermasters,  when  their  employment  is  necessary  to  supple- 
ment the.  services  of  the  personnel  of  the  Quartermaster  Corps;  that 
regimental,  battalion,  and  squadron  quartermasters  and  commis- 
saries may,  under  the  specific  terms  of  this  legislation,  be  required 
to  perform  any  duties  that  may  properly  be  recjuired  of  junior  offi- 
cers of  the  Quartermaster  Corps,  including  tlie  duties  of  post  quar- 
termasters, provided  such  officers  be  not  re(pured  to  receipt  for  money 
or  property  not  pertaining  to  their  respective  organizations  and  are 
not  separated  therefrom:  that  officers  commissioned  in  the  mobile 
branches  of  the  line  of  the  Army  but  detached  therefrom  under  the 
provisions  of  law  and  replaced"  in  their  respective  branches  under 
the  provisions  of  section  27  of  the  act  of  February  2,  1901  (31  Stat.. 
755),  may,' as  occasion  arises,  be  required  to  perform  Quartermaster 
Corps  duties  properly  incident  to  the  duties  for  the  performance 
of  which  they  are  detached,  but  may  not  be  detached  for  the  purpose 
of  assigning^o  them  duties  pertaining  to  the  Quartermaster  Corj^s: 
and  that  all  other  officers  of  the  mobile  branches  of  the  Ime  ot  the 
Army  are  within  the  implied  prohibition  of  the  new  statute  and  may 
not  be  charged  wnth  Quartermaster  Corps  duties.  ... 

Held  also,  that  within  the  meaning  of  this  legislation  there  is  n.) 
diffei-ence  between  a  memorandum  receipt  which  renders  the  oflu-er 
giving  it  res])onsible.  thouah  not  accountal)le.  for  the  property  or 
funds^ receipted  for  and  a  receipt  which  renders  him  accountable  as 
well  as  responsible;  and  that  regimental.  l)attalion.  and  squadron 
(iuartermasters  and  commissaries  may  not  be  required  to  give  mem- 
orandum receipts  for  money  or  property  not  pertainnig  to  tUeir 
]  espective  organizations. 


128        DIGEST   OF   OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL. 

Held  further^  that  in  the  sense  of  this  legishition  the  line  of  de- 
marcation which  separates  money  or  property  pertaining  to  a  regi- 
ment, battalion,  or  squadron  from  other  money  or  property  is  the 
line  which  separates  money  or  property  necessary  and  proper  for  the 
nse,  preparation,  and  maintenance  of  the  regiment,  battalion,  or 
s(iuadron  as  a  mobile  imit  of  the  Army  from  money  or  property  used 
or  intended  for  other  pnri)oses. 

(6-224,  J.  A.  G.,  Dec.  20,  1912.) 


QUARTERMASTER  CORPS:  Enlisted  men  in;  counting  time  of  civilian 
service  of  persons  enlisting  therein  to  take  the  place  of  civilian  em- 
ployees. 

Section  4  of  the  Army  appropriation  act  of  August  24,  1912  (37 
Stat.,  593),  provides  for  the  enlistment  in  the  Quartermaster  Corps 
of  men  to  take  the  place  of  certain  civilian  employees  and  detailed 
enlisted  men  rendering  service  in  the  Quartermaster's  Department  of 
the  Army.  Held,,  that  service  as  a  civilian  employee  in  the  Quarter- 
master's Department  prior  to  enlistment  in  the  Quartermaster  Corps 
under  the  provisions  of  said  section  can  not  be  counted  as  enlisted 
service  either  for  the  purpose  of  computing  longevity  pay  after  en- 
listment or  for  the  purpose  of  retirement. 

(G-224.1,  J.  A.  G.,  Dec.  4,  1912.) 


QUARTERMASTER  CORPS:   Enlisted  men;  sergeants  of  the  Quartermaster 
Corps  and  qua.rtermaster  sergeants. 

Section  3  of  the  Army  appropriation  act  of  August  24,  1912  (37 
Stat.,  592),  provides  that — 

"The  noncommissioned  officers  now  known  as  post  quartermaster 
sergeants  and  post  commissary  sergeants  shall  hereafter  be  known  as 
quartermaster  sergeants"  who  shall  "continue  to  have  the  same  pay, 
allowances,  rights,  and  privileges"  then  allowed  them  by  law. 

Section  4  of  the  same  act  {idem,  p.  593)  provides  for  the  enlistment 
of  not  to  exceed  6,000  men  in  the  Quartermaster  Corps,  constituted 
by  said  act,  including  600  sergeants  (first  class)  and  1,005  sergeants. 

Held,  that  the  sergeants  wdiose  enlistment  is  authorized  by  section 
4  of  the  act  are  a  distinct  grade  from  those  formerly  known  as  post 
quartermaster  sergeants  and  post  commissary  sergeants,  and  that  no 
change  was  made  by  the  law  in  the  status,  pay,  or  allowances  of  the 
latter  grade,  but  duties  formerly  pertaining  to  post  commissary  and 
post  quartermaster  sergeants  may  now  be  performed  by  any  of  them 
under  their  designation  of  quartermaster  sergeants. 

(6-224.1,  J.  A.  G.,  Xov.  30,  1912.) 


QUARTERMASTER  CORPS:   Officers  of;   when  reduction  in  the  nximber 
becomes  effective. 

Section  3  of  the  Army  appropriation  act  of  August  24,  1912  (37 
Stat.,  591),  consolidates  the  Quartermaster's,  Subsistence,  and  Pay 
Departments  of  the  Army  into  one  body  to  be  known  as  the  Quarter- 
master Corps  of  the  Army,  and  makes  applicable  to  such  corps  the 


DIGEST   OF    OPINIONS    OF    THE    JUDGE   ADVOCATE    GENERAL.        129 

provisions  of  sections  26  and  27  of  the  act  of  February  li,  lUOl  (31 
Stat.,  755),  regarding  details  for  filling  vacancies  therein.  Said  sec- 
tion 3  further  provides  that  no  details  to  fill  vacancies  occurring  iu 
said  consolidated  corps  shall  be  made  until  certain  prescril)ed  reduc- 
tions in  the  number  of  officers  in  the  corps,  in  grades  from  colonel  to 
captain,  inclusive,  shall  have  been  accomplished,  and  a  proviso  is 
added  that  it  shall  be  the  duty  of  the  Chief  of  the  Quartermaster 
Corps  therein  provided  for,  under  the  direction  of  the  President  and 
the  Secretary  of  War,  "to  put  into  effect  the  provisions"'  of  -aiil 
section  "not  less  than  sixty  days  after  the  passage"  of  said  act. 

Held^  that  the  provisions  of  said  section  regarding  details  to  the 
Quartermaster  Corps  became  effective  immediately  upon  the  passage 
of  the  act,  and  that  thereafter  no  details  to  the  consolichited  iorps 
or  to  its  constituent  parts  could  be  made  to  fill  vacancies  occurring 
therein,  until  the  prescribed  reduction  in  the  number  of  ollieei-s 
therein  had  been  accomplished. 

(6-011,  J.  A.  G.,  Oct.  8,  1912.) 


QUARTERMASTER  CORPS:   Promotion;  date  of  vacancies. 

Section  3  of  the  act  of  August  24,  1912  (37  Stat.,  591),  rearls-  in 
part  as  follows: 

"  *  *  *  The  Quartermaster's,  Subsistence,  and  Pay  Depart- 
ments of  the  Army  are  hereby  consolidated  into  and  shall  hereafter 
be  known  as  the  Quartermaster  Corps  of  the  Army.  The  officers  of 
said  departments  shall  hereafter  be  known  as  officers  of  said  corps 
and  by  the  titles  of  the  rank  held  by  them  therein,  and,  excejit  as 
hereinafter  specifically  provided  to  the  contrary,  the  provisions  of 
sections  twenty-six  and  twenty-seven  of  the  Act  of  '^'  *  *  Feb- 
ruary 2,  1901  *  *  *  are  hereby  extended  so  as  to  apply  to  the 
Quartermaster  Corps  in  the  manner  and  to  the  extent  to  which  they 
now  apply  to  the  Quartermaster's.  Subsistence,  and  Pay  Depart- 
ments, *  *  *.  The  officers  now  holding  commissions  as  ollicei-s 
of  the  said  departments  shall  hereafter  have  the  same  tenure  of  com- 
mission in  the  Quartermaster  Corps,  and  as  officers  of  said  corps 
shall  have  rank  of  the  same  grades  and  dates  as  that  now  held  I'V 
them,  and,  for  the  purpose  of  filling  vacancies  among  them,  shall  c«'n- 
stitute  one  list,  on  which  they  shall  be  arranged  according  to  rank. 
So  long  as  any  officers  shall  remain  on  said  list  any  vacancy  occurring 
therein  shall  be  filled,  if  possible,  from  among  such  officers,  by  selec- 
tion if  the  vacancy  occurs  in  a  grade  above  that  of  colonel,  and.  if  the 
vacancy  occurs  in  a  grade  not  above  that  of  colonel,  by  the  pronu)tion 
of  an  officer  who  would  have  been  entitled  to  pwmotion  to  that  par- 
ticular vacancy  if  the  consolidation  of  departments  hereby  pie- 
scribed  had  never  occurred :  *  *  *  Pravi(h'(lfu)'tJur.i\yAtni\XU) 
exceed  six  officers  holding  commissions  with  the  rank  of  captain  in 
the  Quartermaster  Corps  and  who  have  lost  in  relative  rank  through 
irregularities  of  promotion  and  the  operation  of  separate  promotion 
within  the  three  departments  hereby  consolidated,  may,  in  the  «iis- 
cretion  of  the  President  and  subject  to  examination  for  jiromotion  as 
prescribed  by  law,  be  advanced  to  the  grade  of  major  in  (he  Quarter- 
master Corps,     *     *     *  :  And  provided  further,  that  1«'i-  the  iMirpose 

93668°— 17 9 


130        DIGEST   OF   OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL. 

of  carrying  into  effect  the  provisions  of  this  section  the  President  is 
hereby  authorized  to  appoint,  by  and  with  the  advice  and  consent  of 
the  Senate,  the  Chief  of  the  Quartermaster  Corps  herein  provided  for 
immediately  upon -the  passage  of  this  Act,  and  it  shall  be  the  duty  of 
the  said  chief,  under  the  direction  of  the  President  and  the  Secretary 
of  War,  to  put  into  effect  the  provisions  of  this  section  not  less  than 
sixty  days  after  the  passage  of  this  Act." 

On  February  16,  1912,  a  vacancy  occurred  in  the  grade  of  lieutenant 
colonel  in  the  Pay  Department.  On  August  27,  1912,  the  senior 
major  of  the  former  Pay  Department  was  promoted  to  fill  this  va- 
cancy, with  rank  from  February  16,  1912.  There  was  no  captain 
holding  a  permanent  commission  in  the  Pay  Department.  Under  the 
consolidation  act  a  captain  theretofore  commissioned  as  a  captain 
in  the  Subsistence  Department  became  the  senior  captain  in  the 
Quartermaster  Corps. 

Held^  that  there  being  no  captain  on  the  permanent  list  of  officers 
of  the  former  Pay  Department,  the  senior  captain  permanently  be- 
longing to  the  Quartermaster  Corps  may  at  the  proper  time  be  pro- 
moted to  fill  the  vacancy  in  question,  but  that  his  right  to  promotion 
can  not  be  held  to  antedate  the  time  at  which  section  3  of  the  act  of 
August  24,  1912,  supraj  which  made  the  position  available  for  him, 
becomes  administratively  effective. 

Field  further^  that  the  advancement  of  the  six  captains  for  which 
special  provision  is  made  in  section  3  of  the  act  of  August  24,  1912, 
must  be  deferred  until- the  date  when  the  said  section  is  put  into 
administrative  effect,  and  that  the  rank  of  said  officers  as  majors  in 
the  Quartermaster  Corps  can  not  antedate  the  latter  date. 

(6-224,  J.  A.  G.  Sept.  13  and  Oct.  2,  1912.) 


QUARTERMASTER    CORPS:   Quartermaster    sergeants;    filling    vacancies 
in  the  grade  of. 

Section  1142,  Revised  Statutes,  provides  for  the  selection  of  com- 
missary sergeants  from  among  the  sergeants  of  the  line  who  have 
served  faithfully  therein  for  five  years,  three  of  which  shall  have 
been  in  the  grade  of  noncommissioned  officer.  The  act  of  July  5,  1884 
(23  Stat.,  109),  provides  for  the  appointment  of  post  quartermaster 
sergeants  upon  the  recommendation  of  the  Quartermaster  General, 
the  same  to  be  selected  by  examination  from  among  the  most  com- 
petent enlisted  men  of  the  Army  having  at  least  four  years'  service, 
nnd  whose  character  and  education  shall  be  such  as  to  fit  them  to  take 
charge  of  public  property  and  to  act  as  clerks  and  assistants  to  post 
and  other  quartermasters.  Commissary  sergeants  were  afterwards  by 
law  designated  as  post  commissary  sergeants  and  included  in  the 
Subsistence  Department,  and  post  quartermaster  sergeants  were  by 
law  incorporated  into  the  Quartermaster's  Department.  Section  3 
of  the  Army  appropriation  act  of  August  24,  1912  (37  Stat.,  591), 
consolidates  the  Quartermaster's,  Subsistence,  and  Pay  Departments 
of  the  Army  into  a  single  corps,  to  be  Imown  as  the  Quartermaster 
Corps,  and  changes  the  designations  of  post  commissary  sergeants 
and  post  quartermaster  sergeants  to  quartermaster  sergeants.  It  pro- 
vides also  that  the  duties  now  required  by  law  to  be  performed  by 
officers  of  said  several  departments  shall  hereafter  be  performed  by 


DIGEST   OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL.        131 

such  officers  of  the  Quartermaster  Corps  as  the  Secretary  of  War 
may  designate  for  that  purpose.  Ileld^  that  the  consolidation  of  said 
departments  into  a  single  corps  and  the  changing  of  the  designat'  :i 
of  said  sergeants  to  that  of  quartermaster  sergeant  did  not  rep'-  ■'  '  ■ 
requirements  regarding  the  appointment  of  said  sergeants,  i 
tively,  and  that  in  filling  the  position  of  quartermaster  sergeant  in 
the  consolidated  corps  the  requirements  of  both  of  said  statutt^s  wiiii 
respect  to  the  qualifications  and  methods  of  selection  should  be  ob- 
served, adopting  the  higher  qualifications  and  observing  the  more 
restricted  field  of  selection  when  the  two  statutes  contain  different 
provisions  upon  the  subject. 

(6-224,  J.  A.  G.,  Oct.  16,  1912.) 


TRAVEL   ALLOWANCES:    To   discharged   soldiers;    commutation   of   Bub- 
sistence  to  place  of  enlistment;  through  transportation. 

The  Army  appropriation  act  of  August  24,  1912  (37  Stat.,  570), 
provides  "  for  travel  allowance  to  enlisted  men  on  discharge,"  adding 
the  proviso  that — 

"  Hereafter  when  an  enlisted  man  is  discharged  from  the  service, 
except  by  way  of  punishment  for  an  offense,  he  shall  be  entitled  to 
transportation  in  kind  and  subsistence,  from  the  place  of  his  dis- 
charge to  the  place  of  his  enlistment,  or  to  such  other  place  within 
the  continental  limits  of  the  United  States  as  he  may  select,  to  which 
the  distance  is  lio  greater  than  from  the  place  of  discharge  to  place 
of  enlistment." 

Held^  that  the  Government  is  not  limited  to  furnishing  subsistence 
in  kind  but  may  commute  the  same  at  the  rate  of  three  meals  for 
each  24  hours'  travel  at  a  certain  rate  per  meal  (Dec.  Comp.  of  the 
Treas.,  Oct.  12,  1912).  Held,  further^  that  the  Government  is  bound 
to  furnish  transportation  in  kind  to  the  place  to  which  the  discharged 
soldier  is  entitled  to  be  transported,  if  upon  some  public  line  of 
transportation,  although  it  may  not  be  possible  to  secure  through 
transportation  at  the  place  of  discharge  from  such  place  to  the  place 
of  destination. 

(94-330,  J.  A.  a,  Nov.  22,  1912.) 


TRAVEL  ALLOWANCES:  To  discharged  soldiers;  transportation  and  sub- 
sistence to  place  of  enlistment. 

The  act  of  August  24,  1912  (37  Stat.,  570),  provides  that  an  en- 
listed man  discharged,  except  by  way  of  punishment  for  an  oifense, 
shall  be  entitled  to  transportation  in  kind  and  subsistence  fi-om  (he 
place  of  discharge  to  the  place  of  his  enlistment,  or— 

"To  such  other  place  within  the  continental  limits  of  the  Linti'd 
States  as  he  may  select,  to  which  the  distance  is  no  greater  than  fi-.-in 
the  place  of  discharge  to  place  of  enlistment." 

Held,  that  such  transportation  and  subsistence  must  be  furius hei 
without  regard  to  the  cost,  but  that  the  Government  is  not  called 
upon  to  furnish  transportation  to  points  reached  only  by  private 
conveyances,  and~the  statute  is  satisfied  by  furnislung  the  same  to 
some  place  upon  a  line  of  public  transportation  nearest  to  the  phice 
selected  by  the  soldier. 

(94-332,  J.  A.  G.,  Oct.  28,  1912.) 


132   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

VOLUNTEER  ARMY:   Attendance  at  Army  Service  School  of  oflicer  of  the 
Organized  Militia  holding  certificate  of  fitness  for  commission  in, 

A  captain  in  the  Organized  Militia  of  a  State  held  a  certificate 
of  fitness  for  a  commission  as  lieutenant  colonel  in  the  Volunteer 
Army,  obtained  by  examination  in  pursuance  of  section  23,  act  of 
January  21,  1903  (32  Stat.,  779).  Said  section  provides  that  the 
President  may  authorize  persons  examined  and  found  fitted  for  the 
command  of  troops  or  the  performance  of  staff  duties,  and  certified 
as  provided  in  said  section,  to  pursue  a  regular  course  of  study  at 
any  military  school  or  college  of  the  United  States,  except  the  Mili- 
tary Academy  at  West  Point.  Such  person  is,  while  so  attending, 
entitled  to  the  same  travel  allowances,  and  quarters  or  commutation 
thereof,  as  officers  of  the  Regular  Army  under  similar  conditions. 
The  purpose  of  said  section  is  to  secure  a  list  of  persons  qualified  to 
hold  commissions  "  in  any  volunteer  force  *  *  *  other  than  a 
force  composed  of  Organized  Militia,"  and  the  act  further  provides 
that  the  appointments  provided  for  "  shall  not  be  deemed  to  include 
appointments  to  any  office  *  *  *  of  the  Organized  Militia  which 
volunteers  as  a  body."  Ileld^  that  so  long  as  the  applicant  retains  his 
status  as  an  officer  of  the  Organized  Militia  he  will  not  be  eligible 
for  appointment  as  contemplated  by  said  section  23,  and  therefore 
does  not  come  within  the  provisions  of  said  section;  and  having  in 
view  section  16  of  the  same  act,  which  makes  provision  for  the  at- 
tendance of  officers  of  the  Organized  Militia  at  Army  service  schools. 
Held  further^  that  if  the  applicant  in  this  case  should  be  designated 
to  attend  such  school  it  must  be  in  his  capacity  as  an  officer  of  the 
Organized  Militia,  and  that  w^hile  so  attending  he  would  be  entitled 
only  to  the  allowances  pertaining  to  his  grade  as  such  officer. 

(58-411,  J.  A.  G.,  Dec.  19,  1912.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  In  the  office  of  the  Jiidge  Advocate  General.) 

ACCOUNTABILITY:    Loss  by  abrasion  of  gold  coin  shipped  by  a  quarter- 
master for  deposit  in  a  United  States  subtrea,sury. 

A  United  States  Army  quartermaster  consigned  to  the  United 
States  subtreasury  at  San  Francisco,  Cal.,  for  deposit,  certain  moneys 
among  which  was  about  $500  in  gold  coin.  The  assistant  treasurer 
at  San  Francisco  reported  the  receipt  of  the  remittance,  and  stated 
that  the  deposit  contained  light  weight  gold  coin  which  had  de- 
preciated in  value  to  the  extent  of  20  cents,  which  sum  he  had  de- 
ducted from  the  nominal  value  of  the  total  remittance.  The  limit  of 
tolerance  for  reduction  in  weight  of  gold  coin  by  natural  abrasion  is 
fixed  by  statute,  below  which  the  coin  will  not  be  received  at  its 
nominal  face  value  by  the  United  States  Treasury,  and  can  only  be 
received  for  recoinage  at  the  mint  at  its  bullion  value.  Held^  that 
gold  coin  being  standard  money,  is  not  redeemable ;  that  the  assistant 
treasurer  could  not  be  required  to  accept  the  coin  for  deposit  for  a 
greater  sum  than  he  could  receive  credit  for  at  the  mint  for  recoinage ; 
and  that  there  is  no  way  to  reimburse  the  depositor  for  the  loss  in 
weight,  assuming  that  the  same  has  been  correctly  stated. 

(Comp.  of  the  Treas.,  Nov.  29,  1912). 


DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL.        133 

APPRGFRIATIGNS:   For  seacoast  defenses  and  for  barracks  and  quarters 
Philippine  Islands. 

A  provision  in  the  sundry  c-i\il  appropriation  act  of  August  24 
1912  (37  Stat.,  438),  for  the  fiscal  year  1U13  reads  as  foUows:  ' 

"  Military  Posts :  For  continuing  the  construction  of  tlic  uece.s.sarv 
accommodations  for  the  seacoast  artillery  in  the  Philippine  Islands 
$250,000.'\  11  •> 

A  provision  in  the  Army  appropriation  act  of  August  24,  llil2 
(37  Stat.,  584),  for  the  same  fiscal  year  reads: 

"Barracks  and  Quarters,  Philippine  Islands:  Continuing  the  Avork 
of  providing  for  the  proper  shelter  and  protection  of  oIlictMs  and  en- 
listed men  of  the  Army  of  the  United  States  lawfully  on  diitv  in  tiie 
Philippine  Islands,     *     *     *     $500,000." 

Upon  submission  of  the  question  as  to  whether  the  appro|)iiatioii 
contained  in  the  sundry  civil  act  could  be  used  for  the  constru(^tioM 
of  barracks  and  quarters  for  a  regiment  of  infantry  on  Conegidor 
Island.  Held,  that  said  appropriation  is  not  available  for  the  con- 
struction of  any  buildings  except  those  required  for  the  |)roper 
shelter  and  protection  of  the  seacoast  artillery.  The  words  *'  Mili- 
tary Posts  "  did  not  have  the  effect  of  enlarging  the  scope  of  said 
appropriation  beyond  that  specifically  pointed  out  in  the  statute, 
viz,  "the  construction  of  the  necessary  accommodations  for  the  sea- 
coast artillery  in  the  Philippine  Islands." 

(Asst.  Comp.  of  the  Treas.,  Nov.  30,  1912.) 


CLERKS    AND    EMPLOYEES:   Payment    from    lump-sum    appropriations; 
transfer  and  promotion. 

Section  7  of  the  general  deficienc}''  act  of  August  2G,  1912  (;)7 
Stat.,  626),  provides  that — 

"Nor  shall  any  person  employed  at  a  specific  salary  be  hereafter 
transferred  and  hereafter  paid  from  a  lump-sum  appropriation  at  a 
rate  of  compensation  greater  than  such  specilic  salary." 

Held,  that  a  clerk  or  other  employee  receiving  a  specific  salary  who 
is  transferred  to  a  position  paid  from  a  lump-sum  appropriation  c:iu 
not  thereafter  be  promoted  to  another  position  paid  from  such 
appropriation  and  carrying  a  higher  rate  of  compensation. 

(19  Dec.  Comp.,  163.) 

COMMUTATION  OF   QUARTERS:    Providing  the  same  in  kind  where  an 
officer  is  assigned  to  a  duty  stated  to  be  temporary. 

An  officer  was  directed  by  special  orders  " 'J'o  proceed  at  the 
proper  time  to  West  Point,  N.  Y.,  and  report  in  person  August  27, 
1912,  to  the  Superintendent  of  the  United  States  Military  Academy 
for  temporary  duty  until  December  2,  1912,"  and  then  to  return  to 
his  proper  station.  Upon  reporting  as  directed  and  applying  for 
quarters  he  was  informed  that  "On  account  of  shortage  ol  (|uar- 
ters  at  this  post  it  will  not  be  practicable  to  make  assignment  m 
the  bachelor  officers'  quarters  to  an  ollicer  oinlered  here  l<  r  tem- 
porary duty.  You  will  be  assigned  a  room  in  the  Culloin  M.iiDnnI 
Hall  upon  reporting  August  27." 


134       DIGEST  OF  OPINIONS   OF    THE    JUEKIE   ADVOCATE   GENERAL. 

Cullom  Memorial  Hall  is  the  property  of  the  United  States. 
Ileld^  that  the  furnishing  of  this  room  was  the  furnishing  of 
quarters  in  kind  and  the  ecjuivalent  of  commutation  of  quarters, 
and  that  this  precluded  the  officer  from  receiving  such  commutation 
at  Dallas,  Tex.,  where  he  had  previously  been  stationed. 

(Comp.  of  the  Treas.,  Oct.  31,  1912.) 


HEAT  AISTD  I/IGHT  ALLOWANCE:  Furnisliing  same  to  families  of  olBacers 
of  the  Navy  during  absence  of  such  oflB.cers  from  their  permanent  sta- 
tions.    Eurnishing'  same  in  vicinity  of  station. 

The  act  of  March  2,  1907  (34  Stat.,  1167),  provider— 

"  That  hereafter  the  heat  and  light  actually  necessary  for  the 
authorized  allowance  of  quarters  for  officers  and  enlisted  men  (of 
the  Army)  shall  be  furnished  at  the  expense  of  the  United  States 
imder  such  regulations  as  the  Secretary  of  War  may  prescribe." 

The  act  of  February  27,  1893  (27  Stat.,  480),  pro\-id€s  that— 

"  Officers  (of  the  Army)  temporarily  absent  on  duty  in  the  field 
shall  not  lose  their  right  to  quarters  or  commutation  thereof  at 
their  permanent  station  while  so  temporarily  absent." 

By  law,  officers  of  the  Navy  are  entitled  to  the  same  pay  and 
allowances  as  officers  of  corresponding  rank  in  the  Army. 

Paragraph  1052,  Army  Regulations,  1910,  provides  for  furnishing 
fuel  for  the  authorized  quarters  of  officers,  and  paragraph  1053  pro- 
vides that — 

"  The  Quartermaster's  Department  may  issue  or  sell  fuel  in  accord- 
ance with  the  preceding  paragraph  *  *  *  to  families  of  officers 
who  are  temporarily  absent,  or  who  are  on  duty  abroad  or  in  Alaska, 
on  a  written  certificate  of  the  officer  that  the  amount  of  his  allow- 
ance covered  by  the  certificate  will  not  be  otherwise  drawn  by  him. 
Officers  on  sick  leave,  or  under  sentence  of  suspension  from  duty 
on  reduced  pay  when  absent  from  their  proper  stations,  are  not  en- 
titled to  this  privilege.     *     *     *     •' 

Paragraph  1073  of  the  same  regulations  provides  for  furnishing 
gas  and  electricity  for  lighting  purposes  in  accordance  with  the  pro- 
visions of  said  paragraph  to  families  of  officers  under  the  same 
conditions  as  are  prescribed  in  paragi-aph  1053  for  furnishing  them 
with  fuel. 

An  officer  of  the  Navy  stationed  at  Baltimore,  Md.,  and  claiming 
commutation  of  quarters  at  that  place,  boarded  at  Washington, 
D.  C,  going  to  and  from  his  place  of  duty  each  day.  He  main- 
tained no  quarters  in  Baltimore.  Held,  that  as  Baltimore  is  easily 
accessible  by  train  from  Washington,  the  latter  place  might  properly 
be  considered  as  within  the  vicinity  of  the  officer's  regular  station, 
and  that  payment  might  lawfully  be  made  for  furnishing  heat  and 
light  to  the  officer's  family  at  the  place  of  his  residence  according 
to  the  regulation  allowance. 

Certain  other  officers  of  the  Navy  whose  permanent  station  was 
at  Annapolis,  Md.,  were  absent  during  various  periods  of  time  from 
their  regular  station  on  temporary  duty  or  on  leave.  Heat  and 
light  were  furnished  to  the  families  of  these  officers  or  to  mem- 
bers thereof  at  places  other  than  their  regular  station,  according  to 
regulation  allowance. 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.   l;;.", 

Held,  that  the  law  nowhere  makes  provision  for  the  family  of  an 
officer  separately  and  apart  from  the  officer,  and  that  payments  for 
heat  and  light  furnished  as  the  allowance  of  ollicers  absent  on  tem- 
porary duty  or  on  leave  and  supplied  to  their  families  at  places 
other  than  their  regular  stations  can  not  be  allowed. 

(Asst.  Comp.  of  the  Treas.,  Oct.  28,  1912.) 


TAXATION:   Duty,  under  the  Philippine  tariff,  on  jute  bags  used  as  con- 
tainers of  United  States  property. 

The  Quartermaster's  Department  shipped  from  the  United  Statcis 
to  the  depot  quartermaster  in  the  Philippines  a  quantity  of  oats  in 
jute  bags  for  the  use  of  the  Army.  These  oats  were  grown  in  the 
United  States,  but  the  bags  in  which  they  were  contained  had  bcon 
manufactured  in  the  United  States  from  imported  raw  matei-ial 
and  a  drawback  of  the  duties  assessed  thereon  had  been  allowed  under 
the  general  customs  tariJf  law^s  of  the  United  States.  The  Philip- 
pine Government^  claimed  that  duty  should  be  paid  on  the  baL's 
containing  the  shipment  of  oats  at  tlie  rate  of  2  cents  each  under  tlie 
Philippine  tariff  act  of  August  5,  1909  (36  Stat,  130),  which,  unlike 
the  preceding  act  of  March  3,  1905  (33  Stat,  974),  omits  to  include 
in  its  free  list  supplies  imported  by  the  United  States  Government 
for  its  use.    Section  8  of  said  act  of  1909  provides  (p.  137)  — 

"  That  the  rates  of  duties  to  be  collected  on  articles,  goods,  wares, 
or  merchandise  *  *  *  going  into  said  islands  from  the  United 
States  or  any  of  its  possessions  except  as  otherwise  provided  in  this 
act,  shall  be  as  follows:     *     *     * 

"  Gunny  sacks,  each  two  cents"  {idem,,  p.  150.) 

Exceptions  to  the  payment  of  duty  are  made  in  said  act  as  fol- 
lows: 

"  No  duties  shall  be  assessed  on  account  of  the  usual  coverings  or 
holdings  of  articles,  goods,  wares,  or  merchandise  dutiable  otherwise 
than  ad  valorem,  nor  those  free  of  duty,  except  as  in  this  act  ex- 
pressly provided."     (Rule  13  (A),  sec.  2,  ideiiv,  p.  135.) 

"The  following  articles  shall  be  free  of  duty  upon  the  importa- 
tion thereof  into  the  Philippine  Islands  upon  compliance  with  regu- 
lations which  shall  be  prescribed  in  accord  with  the  provisions  of 
each  paragraph.     *     *     * 

"351.  Coverings  and  holdings  of  articles,  goods,  wares,  and  mer- 
chandise (usual),  except  as  expressly  provided."  (Sec.  11,  id-em^  pp. 
172,  173.) 

"  That  all  articles,  except  rice,  the  growth,  product,  or  manufac- 
ture of  the  United  States  and  its  possessions,  to  which  the  customs 
tariff  in  force  in  the  United  States  is  applied  and  upon  which  no 
drawback  of  customs  duties  has  been  allowed  therein,  going  into  the 
Philippine  Islands  shall  hereafter  be  admitted  therein  free  of  cus- 
toms duty  when  the  same  are  shipped  directly  from  the  country  of 
origin  to'the  country  of  destination."     (Sec.  12,  nlcm;  p.  173.) 

Held,  that  the  exceptions  mentioned  in  said  rule  13  (A-)  in  sectuui 
2  and  in  section  11  do  not  apply  to  the  usual  coverings  which  the 
act  expressly  makes  dutiable,  and  therefore  do  not  apply  to  gnnny 
sacks  which  are  specifically  made  dutiable;  and  that  as  a  dra\vl>a(k 
of  the  customs  dutv  had  been  allowed  in  the  United  States  on  iho 


136        DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

gimny  sacks  in  question,  they   do  not  come   within  the  exception 
named  in  section  12  of  the  act.     Jute  bags  are,  therefore,  dutiable 
imports,  and  the  duty,  if  otherwise  properly  assessed,  should  be  paid. 
(Comp.  of  the  Treas.,  Nov.  8,  1912.) 


TRAVEL  ALLOWANCE:  On  discharge;  election  of  enlisted  man  of  Marine 
Corps  to  take  mileage  instead  of  transportation;  travel  between  Alaska 
and  the  United  States. 

The  act  of  June  12,  1906  (34  Stat.,  247),  provides  that  for  the 
purpose  of  determining  allowances  for  all  travel  of  enlisted  men  on 
discharge,  travel — 

"  between  the  United  States  and  Alaska  shall  not  be  regarded  as  sea 
traA^el  and  shall  be  paid  for  at  the  rates  established  by  law  for  land 
travel  within  the  boundaries  of  the  United  States." 

The  law  at  that  time  allowed  an  enlisted  man,  on  discharge,  mile- 
age at  the  rate  of  4  cents  a  mile  from  place  of  discharge  to  place  of 
enlistment  or  original  muster  into  the  service,  except  for  sea  travel. 
The  act  of  August  24,  1912  (37  Stat.,  576),  provides  that  all  soldiers 
on  discharge  shall  receive  transportation  in  kind  and  subsistence  in 
lieu  of  the  mileage  theretofore  allowed  "  or.  in  lieu  of  such  trans- 
portation and  subsistence,  he  shall,  if  he  so  elects,  receive  two  cents  a 
mile,  except  for  sea  travel,  from  the  place  of  his  discharge  to  the 
place  of  his  enlistment." 

By  section  1612,  Revised  Statutes,  enlisted  men  of  the  Marine 
Corps  are  entitled  to  the  same  allowances  on  discharge  as  enlisted 
men  of  the  Army. 

A  quartermaster  sergeant  in  the  Marine  Corps  enlisted  in  Alaska 
and  was  discharged  in  Boston,  Mass.  Held^  that  he  was  entitled, 
on  his  election,  to  mileage  at  the  rate  of  2  cents  a  mile  from  place 
of  discharge  in  Boston,  Mass.,  to  Sitka,  Alaska,  where  he  had  en- 
listed, including  such  mileage  for  sea  travel  between  the  United 
States  and  Alaska. 

(Comp.  of  the  Treas.,  Oct.  31,  1912.) 


OPIinONS  OF  THE  ATTORNEY  GENERAL. 

(Digests  prepared  iu  the  office  of  the  Judge  Advocate  General.) 

EIGHT-HOUR  LAW:  Act  of  June  19,  1912,  as  applied  to  laborers  employed 
on  dredges. 

Section  1  of  the  act  of  June  19,  1912  (37  Stat.,  137),  requires  that 
all  Government  contracts  shall  contain  a  provision  that  the  con- 
tractor shall  not  permit  any  "  laborer  or  mechanic  doing  any  part 
of  the  work  contemplated  by  the  contract"  to  work  thereon  more 
than  eight  hours  in  any  one  calendar  day,  and  a  penalty  is  pre- 
scribed, to  be  collected  from  the  contractor  for  violation  of  the  law. 
Said  section  further  requires  that  any  officer  or  person  designated 
as  inspector  of  the  work  under  such  contract,  or  to  aid  in  enforcing 
the  fulfillment  thereof,  shall  forthwith  report  all  violations  of  the 
act,  with  a  view  to  the  collection  of  the  penalty. 


DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.        137 

I'pon  consideration  of  the  que-tion  as  to  wliL-tlu-r  persons  em- 
ployed upon  a  dredge  employed  in  (iovernment  ^York  should  l>e  ecn- 
sidered  as  ''laborers  or  mechanics"  within  the  meaninjr  of  the  law 
and  also  as  to  Avhether  cases  where  contractors  had  retjuired  or  per- 
mitted such  persons  to  labor  more  than  eight  hours  in  any  one  rali-n- 
dar  da}^  should  be  reported  in  pursuance  of  the  act.  Ildd,  that  bv 
the  established  rule  of  the  Federal  courts  all  persons  reguhirlv  em- 
ployed upon  a  dredge  to  assist  in  its  oj^ierations  as  such  are  searmMi 
and  not  "laborers  or  mechanics,"  and  that  the  nature  of  their  duties 
makes  no  difference  in  the  rule.  See  Eastern  Dredghu/  Co.  \.  1'nitt.d 
t'^tates,  206  U.  S.,  246,  258,  et  seq.  Held  further,  that  "the  act  of  .Jiiiu' 
19,  1912,  should  receive  the  same  construction  as  that  given  in  said 
decision  to  the  act  of  August  1,  1892,  and  that  the  hdjorers  and  me- 
chanics therein  mentioned  do  not  include  laborers  upon  dri'ilgi'>, 
which  latter  are  to  be  classed  as  seamen,  Avho  do  not  come  within 
the  operation  of  the  law.  Tt  will  not  be  necessai-y.  tliereforc.  to  re- 
port the  cases  of  any  persons  working  upon  dredges  more  than  eight 
hours  a  day  when  engaged  upon  dredging  work  under  a  (iovernment 
contract. 

(Atty.  Gen.,  Nov.  27,  1912.) 


EIGHT-HOUE,  LAW:   Work  contemplated  by  the  contract;  contracts  for  the 
purchase  of  projectiles  and  smokeless  powder. 

The  Secretary  of  the  Navy  requested  an  opinion  as  to  whether 
section  1  of  the  act  of  June  19,  1912  (37  Stat.  137),  contemplates 
that  laborers  and  mechanics  shall  not  be  requii-ed  nor  permitted  to 
Avork  more  than  eight  hours  a  day  on  work  generally,  or  only  .'-aid 
length  of  time  daily  upon  work  contemplated  by  the  (lovernment 
contract;  that  is,  whether  a  mechanic,  after  working  eight  hours  '\\\ 
one  calendar  day  upon  work  covered  by  a  Govei-nment  contract,  may 
not,  without  violating  the  eight-hour  restriction,  labor  for  a  further 
joeriod  upon  work  which  the  Government  contractor  may  be  doing 
for  private  parties  or  for  the  Government  under  another  cojitract. 
An  opinion  was  further  desired  as  to  whether  the  law  included  work 
other  than  that  directly  contemplated  by  the  contract,  such  as  work 
in  the  production  and  segregation  of  the  materials  retpiired.  or  in  the 
operation  of  a  plant  used  in  the  work  of  the  contract:  also,  whether 
the  law  applied  to  contracts  for  the  purchase  of  pi-ojectiles  and 
smokeless  powder,  it  being  stated  that  there  is  no  sale  in  this  country 
for  such  articles  except  to" the  Government,  that  projectiles  are  deliv- 
ered to  the  Government  in  the  shape  of  finished,  treated  foi-gings 
which  are  to  be  fused  and  loaded  to  place  them  in  a  cojiditu)n  for 
service,  and  that  the  Government  manufactures  regularly  a  large 
proportion  of  the  smokeless  poAvder  used  by  it. 

Held,  (1)  that  the  eight-hour  workday  restriction  of  the  act  of 
June  19,  1912,  known  as  the  eight-hour  hnv.  applies  only  to  work 
contemplated  by  the  contract— that  is,  Avork  directly  and  pro.xunately 
in  view  of  the  contract  as  specifically  appropriated  and  destined  for 
the  Government  use;  (2)  that  contracts  for  the  purchase  of  i)ro- 
jectiles  are  not  excepted  from  the  opei-ation  of  the  eight -hour  restric- 
tion under  the  term  "supplies"  or  "materials  or  articles  as  may 
usuallv  be  bought  in  open  market,"  which  latter  aiv  in  terms  ex- 


138        DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

ceptcd  fi'om  the  operation  of  section  1  of  said  act,  but  only  the  work 
done  in  assembling  the  parts,  treating  the  forgings  and  castings,  and 
machining  the  projectiles  would  be  work  contemplated  by  the  con- 
tract unless  the  castings  or  other  parts  are  manufactured  solely  and 
oxclusivel}^  for  the  purpose  of  making  the  projectiles;  (3)  that  as 
military  smokeless  powder  is  ordinarily  manufactured  by  the  Gov- 
ernment for  its  own  use  it  falls  within  the  proviso  in  the  law  that  all 
classes  of  work  which  have  been,  are  now,  or  may  hereafter  be  per- 
formed by  the  Government  shall,  when  performed  for  the  Govern- 
ment under  contract,  be  performed  under  the  restrictions  of  section  1 
of  said  act;  and  that  all  contracts  for  the  purchase  of  such  powder 
are  therefore  subject  to  the  eight-hour  restriction. 
(29  Op.  Atty.  Gen.,  534) 


OFnCERS  OF  THE  ARMY:   Status  of  officer  accepting  a  recess  appoint- 
ment by  way  of  promotion  and  retired  on  such  appointment. 

An  officer  of  the  Army  was  given  a  recess  appointment,  by  way  of 
promotion,  to  a  vacancy  in  the  next  higher  grade.  The  Senate  con- 
vened in  regular  session  after  the  date  of  said  appointment,  but 
failed  to  act  upon  the  nomination  of  said  officer  to  the  position  held 
by  him  under  such  recess  appointment.  The  officer  is  about  to  reach 
the  age  of  retirement. 

Ileld^  that  taking  into  consideration  the  99th  Article  of  War, 
which  provides  that  "  In  time  of  peace  no  officer  shall  be  dismissed, 
except  in  pursuance  of  the  sentence  of  a  court-martial,  or  in  miti- 
gation thereof,"  and  also  the  laws  in  force  regarding  promotion  by 
seniority,  an  officer  who  accepts  a  recess  appointment  by  way  of  pro- 
motion does  so  conditionally,  and  should  the  Senate  fail  or  refuse 
to  act  upon  his  nomination  to  the  position,  he  reverts  to  his  former 
grade  in  the  Army.  Held  further^  that  if  an  officer,  while  holding 
such  recess  appointment,  reaches  the  age  of  retirement,  he  is  to  be 
retired  upon  the  rank  of  the  office  which  he  holds  by  such  recess 
appointment,  notwithstanding  the  Senate  may  fail  or  refuse  to  con- 
firm his  nomination  to  such  office. 

(Atty.  Gen.,  Dec.  22,  1912.) 


BULLETIN    4. 

Bulletin  1  WAR  DEPARTMENT. 

^0.4.      j  W Asni^v.ros,  February  I,  J!U  J. 

The  following  digest  of  opinions  of  the  Judge  Advocate  CieiHMal 
of  the  Army  for  the  month  of  January,  1913,  and  digests  of  ccitain 
decisions  of  the  Comptroller  of  the  Treasury  are  published  for  the 
information  of  the  service  in  general. 
[2005454,  A.  G.  O.] 
By  order  of  the  Secretary  or  War  : 

LEONARD  AVOOD, 
Major  General,  Chi'f  of  Stnjf, 
Official  : 

H.  O.  S.  HEISTAND, 

Adjutant  General. 


OPimONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

BONDS:   Of  guaranty;  release  of  sureties  by  luodificatiou  of  contract. 

A  contract  provided  for  the  manufacture  and  delivery  of  a  certain 
quantity  of  single-conductor  intermediate  cable.  The  specifications 
and  advertisement  under  which  the  contract  was  let  formed  a 
part  of  the  contract,  and  prohibited  the  use,  inter  alia,  of  ozokerite 
in  the  manufacture  of  the  cable.  After  the  greater  portion  of  the 
cable  had  been  delivered,  permission  was  requested  to  use  ozokerite 
in  the  compound  to  be  put  into  the  cable.  Two  bonds  were  given,  one 
covering  a  guaranty  of  the  cable  for  three  years  "  against  all  defi 
of  material  and  workmanship,"  and  the  other  guaranteeing  (lie  faiiii- 
ful  fulfillment  of  the  contract,  l/elf/,  that  to  grant  the  penni.ssion 
requested  would  amount  to  a  substantial  modification  of  the  contract 
and  would  release  the  sureties  on  both  bonds.  Advised,  therefore,  if 
it  be  desired  to  grant  the  permission  requested,  that  a  suppliMDi-iii  M 
contract  be  made  modifying  the  original  contract  so  as  to  grant  .>-ii  n 
permission,  and  that  the  assent  to  such  modification  be  obtained  from 
the  sureties  on  both  bonds. 

(12-331,  J.  A.  a,  Jan.  16,  1913.) 


BUKEAir  OF  INSITLAB,  AFFAIRS :   Appointment  of  officer  as  chief. 

Section  5  of  the  act  of  August  24,  1912  (37  Stat,  594),  provides  in 
general  that,  except  where  otherwise  specially  provided,  when  an 
officer  shall,  under  the  provisions  of  section  20  of  the  act  of  Fcbniarv 
2, 1901, "  be  appointed  to  an  office  above  that  of  colonel  his  appointment 

130 


140        DIGEST    OF    OPTXIOXS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

to  said  office  and  his  acceptance  of  the  appointment  shall  create  a 
vacancy  in  the  arm,  staff  corps,  or  staff  department  from  which  he 
shiill  be  appointed,"  with  further  provision  for  his  retention  of  rela- 
tive rank  in  the  branch  of  the  service  from  which  he  is  appointed  and 
his  return  thereto  upon  expiration  of  his  appointment.  Section  26  of 
the  act  of  February  2,  1901  (31  Stat,  755) ,  provides— 

''  That  when  vacancies  shall  occur  in  the  position  of  chief  of  any 
staff'  corps  or  department  the  President  may  appoint  to  such  vacan- 
cies, by  and  with  the  advice  and  consent  of  the  Senate,  officers  of  the 
Army  at  large  not  below  the  rank  of  lieutenant  colonel  and  who  shall 
liold  office  for  terms  of  four  years." 

At  the  time  of  the  passage  of  this  act  the  Bureau  of  Insular  Affairs 
existed  only  as  an  administrative  division  in  the  War  Department. 
The  act  of  July  1, 1902  (32  Stat.,  712),  continued  its  existence  under 
the  designation  of  Bureau  of  Insular  Affairs  of  the  War  Department, 
and  the  act  of  June  25,  1906  (34  Stat.,  456),  provided  that: 

"  The  Chief  of  the  Bureau  of  Insular  Affairs  of  the  War  Depart- 
ment shall  hereafter  be  appointed  by  the  President  for  the  period 
of  four  years,  unless  sooner  relieved,  with  the  advice  and  consent  of 
the  Senate,  and  while  holding  that  office  he  shall  have  the  rank,  pay, 
and  allowances  of  a  brigadier  general." 

Held^  that  while  the  language  of  the  law  providing  for  the  appoint- 
ment by  the  President  of  the  Chief  of  the  Bureau  of  Insular  Affairs 
with  the  rank,  pay,  and  allowances  of  a  brigadier  general  is  similar 
to  the  terms  of  section  26  of  the  act  of  February  2,  1901,  providing 
for  the  filling  of  vacancies  in  the  position  of  chief  of  staff  corps  or 
departments,  the  former  makes  no  reference  to  said  section  26,  but 
provides  a  special  means  for  filling  the  position  of  the  Chief  of  the 
Bureau  of  Insular  Affairs  and  preserves  the  feature  of  the  initial 
legislation  with  reference  to  said  bureau  which  did  not  limit  the  field 
of  selection  of  the  chief  thereof  to  officers  of  certain  grades.  Section 
5  of  the  act  of  August  12,  1912,  does  not,  therefore,  apply  to  the  posi- 
tion of  Chief  of  the  Bureau  of  Insular  Affairs. 

(6-229.1,  J.  A.  G.,  Jan.  30,  1913.) 


CLERKS  AND  EMPLOYEES:    Civil  Service;  furnishing  notice  of  cause  of 
removal. 

Section  6  of  the  Post  Office  appropriation  act  of  August  24,  1912 
(37  Stat.,  555),  provides  that  no  person  shall  be  removed  from  the 
classified  civil  service  except  for  such  cause  as  will  promote  the  effi- 
ciency of  said  service  and  for  reasons  given  in  writing,  and  that  the 
person  whose  removal  is  sought  shall  have: 

"  Notice  of  the  same  and  of  any  charges  preferred  against  him,  and 
be  furnished  with  a  copy  thereof,  and  also  be  allowed  a  reasonable 
time  for  personally  answering  the  same  in  writing." 

A  marine  engineer  in  the  classified  service,  who  had  been  appointed 
to  a  position  on  a  boat,  was  discharged  from  the  service  by  reason  of 
the  fact  that  the  boat  was  not  to  be  continued  longer  in  commission, 
although  it  was  stated  that  reasons  existed  for  preferring  charges 
against  him.  fleld^  that  the  statute  requiring  notice  in  writing  of 
the  reasons  for  the  removal  of  an  employee  in  the  classified  service 
does  not  apply  to  cases  of  removal  occasioned  by  the  fact  that  the 


DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL.       141 

services  of  the  employee  are  no  longer  required,  but  only  to  cases 
where  it  is  proposed  to  remove  such  employee  for  delin(|uencv  or 
misconduct,  and  that  the  law  has  no  application  to  this  case. 
(16-320,  J.  A.  G.,  Jan.  10,  1912.) 


CONTRACTS:  Supplemental;  modification  of  original  contract  and  adjust- 
ment of  damages. 

A  contract  was  entered  into  after  due  advertisement  for  the  sinkinj? 
of  two  wells  and  for  the  furnishing  of  windmills,  engines,  and  pumps 
therefor.  After  the  work  had  been  begun,  it  was  foimd  tiiat  the  locu- 
tion selected  by  the  military  authorities  was  unsuitable  and  the  wnrlc 
was  ordered  suspended.  After  some  delay  a  new  site  was  chosen,  but 
it  was  found  that  the  amount  allotted  for  the  work  wouhl  not  he  suffi- 
cient to  pay  for  the  removal  of  the  contractor's  outfit  and  the  boring 
of  two  new  wells,  including  payment  for  the  work  done  at  the  old 
location  and  a  just  compensation  to  the  contractor  for  the  delay. 
Held,  that  the  heads  of  departments  have  authority  to  enter  into  sup- 
plemental agreements  modifying  existing  contracts  where  such  agree- 
ments are  in  the  interest  of  the  United  States,  and  that  it  is  permis- 
sible in  the  present  case  to  enter  into  a  supplemental  contract  with 
the  original  contractor  for  sinking  one  well  and  for  furnishing  it 
with  certain  appliances,  and  also  for  furnishing  certain  material  for 
another  well.  Held  further,  that  the  former  bidders  for  the  work 
have  no  right  or  interest  therein  after  the  awarding  of  the  contract, 
nor  have  they  any  interest  in  the  modifications  of  such  contract. 

(76-420,  J.  A.  G.,  Jan.  16,  1913.) 


DAMAGES:  Liability  of  a  municipality  for,  caused  by  failure  to  keep  bridge 
in  repair. 

Certain  property  of  the  United  States  was  damaged  by  the  giving 
away  of  a  defective  bridge  within  the  corporate  limits  of  a  town 
which  was  charged  with  the  duty  of  keeping  said  bridge  in  reoair. 
The  law  of  the  State  makes  a  town  liable  for  damages  resultmg  from 
the  insufficiencv  or  want  of  repair  of  a  bridge  witliin  its  corporate 
limits  and  which  it  is  bound  to  maintain,  but  provides  fiutlier  that 
the  person  damaged  shall  within  twenty  days  after  the  daunige 
occurs  serve  upon  one  or  more  selectmen  of  the  town  a  written  notice 
pointing  out,  among  other  things,  in  Avhat  respect  the  bridge  was 
insufficient  or  out  of  repair  and  stating  that  the  person  ilamaged 
will  claim  satisfaction  from  the  town.  The  notice  in  this  case  con- 
sisted in  sending  to  a  selectman  of  the  town  a  copy  of  the  report  of 
the  Army  officer  detailing  the  time,  place,  and  circumstances  ol  tlie 
accident  which  occasioned  the  damage,  but  it  did  not  appear  that  it 
was  stated  that  the  United  States  would  claim  satisfaction  f«>r  the 
iniury,  nor  was  it  pointed  out  in  what  respect  the  bridge  was  in- 
sufficient or  out  of  repair,  although  one  of  the  selectmen  was  present 
at  the  scene  of  the  accident  and  the  cause  thereof  ^yas  patent  to  Imn. 

Held,  that  the  liability  of  the  town  for  the  dainages  resulting 
from  the  failure  to  keep  tJhe  bridge  in  proper  repair  is  statutory,  an.l 
all  the  requirements  of  the  law  with  respect  to  notice  must  be  com- 


142        DIGEST  OF   OPINIONS   OF   THE    JUDGE    ADVOCATE   GENERAL. 

plied  with  in  order  to  fix  the  liability ;  and  that  as  the  notice  in  this 
case  failed  to  specify  that  the  United  States  would  claim  satisfaction 
from  the  town  and  failed  to  point  out  in  what  respect  the  bridge 
was  insufficient  or  out  of  repair,  it  is  fatally  defective  and  the  town 
cannot  be  held  liable  for  the  damages,  and  it  is  immaterial  that  one 
of  the  selectmen  may  have  had  actual  notice  of  the  defective  condi- 
tion of  the  bridge. 

(80-011,  J.  A.  G.,  Jan.  25,  1913.) 


DESERTION:  Bemoving  charge  of,  under  the  act  of  March  2,  1889. 

Section  1  of  the  act  of  March  2,  1889  (25  Stat.,  869),  provides  for 
the  removal  by  the  Secretary  of  War  of  a  charge  of  desertion  stand- 
ing on  the  rolls  or  records  of  The  Adjutant  General's  Office  against 
any  volunteer  soldier  of  the  Civil  War  where  it  appears  to  the  satis- 
faction of  the  Secretary  of  War  from  such  rolls  and  records  or  from 
other  testimony — 

"  That  such  soldier  served  faithfully  until  the  expiration  of  his 
term  of  enlistment,  or  until  the  first  day  of  May,  anno  Domini  eight- 
een hundred  and  sixty-five,  having  previously  served  six  months  or 
more,  and,  by  reason  of  absence  from  his  command  at  the  time  the 
same  was  mustered  out,  failed  to  be  mustered  out  and  to  receive  an 
honorable  discharge." 

Section  7  of  the  same  act  provides  that  the  same  shall  not  be  so 
construed  as  to  relieve  any  soldier  from  the  charge  of  desertion  who 
left  his  command  under  certain  special  conditions  therein  stated. 

A  soldier  enlisted  for  three  years  September  16,  1863,  and  served 
faithfully  until  October  15,  1865,  on  which  date  he  was  charged  with 
having  deserted.  He  returned  November  7,  1865,  and  was  again 
charged  with  desertion  April  1,  1866.  His  company  was  mustered 
out  May  14,  1866.  Held,  that  the  question  of  the  removal  of  the 
charge  of  desertion  can  not  be  affected  simply  because  the  soldier 
was  charged  with  desertion  twice  subsequent  to  May  1,  1865,  the  pur- 
pose of  the  statute  being  to  clear  the  military  records  of  soldiers 
whose  service  measured  up  to  its  requirements,  and  the  charge  con- 
templated being  not  a  mere  entry  on  the  record,  but  rather  a  status 
of  questionable  honor  resulting  from  the  imputation  carried  by  the 
record;  and  further  Held,  that  the  charge  of  having  deserted  Octo- 
ber 15,  1865,  can  not  be  held  to  render  the  faithful  service  prior  to 
May  1,  1865,  as  other  than  faithful,  so  as  to  work  a  denial  of  the- 
benefit  of  the  statute ;  and  that  if  it  appears  to  the  satisfaction  of  the 
Secretary  of  War  that  the  applicant  otherwise  meets  the  require- 
ments of  the  statute,  the  charge  of  desertion  should  be  fully  removed. 

(26-541,  J.  A.  G.,  Jan.  24,  1913.) 


DETACHED  SERVICE:  Duty  in  command  of  machine-gun  platoon  consist- 
ing in  part  of  detached  jiortion  of  the  company  to  which  the  platoon 
commander  belongs. 

A  first  lieutenant  of  infantry  requested  credit  as  for  duty  with  his 
company  within  the  meaning  of  the  detached-service  provision  of 
the  act  of  August  24, 1912  (37  Stat.,  571) ,  for  the  period  during  which 


DIGEST  OF   OPINIONS  OF   THE    JUDGE   ADVOCATE   GENERAL.       143 

he  was  in  coniinand  of  the  machine-gun  platoon  of  the  ivf^iiueut,  the 
platoon  being  composed  in  part  of  a  detachment  consisun*'  of' one 
corporal  and  six  privates  of  the  company  to  which  the  ollicer  belonged 
by  formal  assignment.  He  claimed  that  while  on  duty  in  conniuind 
of  the  platoon  he  was  at  all  times  on  duty  with  a  detachment  from 
the  company  to  which  he  was  assigned,  and  in  addition  was  always 
considered  as  available  for  duty  with  the  company  and  attendeil 
formations  with  the  company,  such  as  parades,  reviews,  etc.,  when 
tlie  machine-gun  platoon  as  such  was  not  present  at  £hose  form;!*  ■ 

The  enlisted  personnel  of  the  machine-gun  platoon  of  a  re- 
is  made  up  of  enlisted  men  detached  from  several  companies  of  tlio 
regiment,  and  although  the  platoon  is  not  a  statutory  oi-gaui/.ation, 
it  is  in  fact  a  separate  organization  having  no  necessary  relation 
with  any  of  the  companies  of  the  regiment,  except  in  so  far  as  the 
members  of  the  platoon  may  bo  carried  on  the  rolls  of  the  statutory 
organizations  from  which  such  members  have  been  detached  for  tlni 
purpose  of  assigning  them  to  duty  with  the  platoon  ((J.  O.  No.  113, 
War  Dept.,  1906;  G.  O.  No.  47,  War  Dept.,  1910).  The  platoon  is 
an  adjunct  or  provisional  unit  of  the  regiment,  or  of  one  of  the 
battalions  thereof,  but  not  of  any  company.  The  captain  of  the 
company  from  which  the  platoon  commander  is  detailed  has  no  nuue 
to  do  with  the  command  of  the  platoon  than  has  any  other  captain 
of  the  regiment. 

Applying  the  principle  laid  down  in  a  former  opinion  (G-124,  Nov. 
18,  1912)  to  determine  when  an  officer  commanding  a  detached  por- 
tion of  his  company  is  to  be  considered  as  actually  present  for  duty 
with  his  company,  Fleld^  that  a  lieutenant  in  command  of  a  machine- 
gun  platoon  is,  as  such  commander,  to  all  intents  and  purposes  de- 
tached from  the  company  to  which  he  may  have  Ijeen  formally 
assigned;  and  the  mere  fact  that  a  portion  of  the  personnel  of  the 
platoon  is  drawn  from  the  company  to  which  the  platoon  commander 
stands  formally  assigned  can  not  serve  to  make  his  performance 
of  duty  with  the  platoon  duty  with  his  company  in  the  sense  of  the 
detached-service  provision  of  the  act  of  August  24,  1912. 

(6-124,  J.  A.  G.,  Jan.  15,  1913.) 


DETACHED   SERVICE:   Duty  with  company;   attending   as   a  witness  in 
obedience  to  a  subpoena. 

A  captain  of  infantry  whose  detachment  from  his  company  was 
forbidden  by  the  act  of  August  24,  1912  (37  Stat,  571),  relating  to 
detached  service,  was  subpoenaed  to  attend  as  a  witness  at  a  tnjil 
before  a  civil  court.  His  company  and  battalion  were  under  orders 
to  leave  for  another  station  and  the  obedience  of  the  sulipnpna  would 
necessitate  a  separation  from  his  company.  Held,  tliat  wiule  the 
officer  is  absent  from  his  company  in  obedience  to  a  sub|xpna,  he  is 
not  actually  present  for  duty  "  with  his  organization,"  but  he  is  not 
to  be  considered  as  detached  from  his  organization  ^^  for  dutv  of  aiiv 
kind  "  in  such  sense  as  to  bring  into  operation  the  penalty  clause  of 
the  statute,  nor  should  he  be  considered  as  so  detached  if  permitted, 
after  service  of  the  subpc&ha,  to  delay  his  departure  untd  after  the 
date  set  for  the  trial  at  which  he  is  to  testify. 

(6-124,  J.  A.  G.,  Jan.  10,  1913.) 


144        DIGEST    OF    OPINIONS   OF    TITF    JUDGE    ADVOCATE    GENERAL. 

DETACHED  SERVICE:  An  officer  commanding-  a  detached  portion   of  his 
company. 

In  an  ()|)iiiion  of  Soplombcr  IG,  11)12,  it  was  said  that — 

"An  ollicor  who  coiiunands  a  (lotachcd  portion  ol  his  troop,  battery, 
or  conijiany  *  *  *  must,  under  these  conditions,  be  held,  I  think, 
to  be  actually  i)roscnt  J'or  duty  with  his  oi-^-anization." 

In  connnontin«r  u|)on  the  unmistakable  nieaniuo;  of  the  above  ex- 
pressiou  (now  ouibodiod  in  substance  in  par,  8,  G.  O.  44,  W.  D.,  Nov. 
6,  1912),  it  Avas  heJd: 

"  Its  jiriuiaiy  purpose  was  to  cover  the  case  of  an  officer  who, 
while'  staiuliuo-  in  (he  re<>ular  and  normal  duty  relation  to  his  coni- 
j)any,  nevertheless  is  detached  for  the  pui-pose  of  the  further  per- 
formance of  duties  incident  to  that  relation  with  a  portion  of  the 
company,  and  retains  his  normal  duty  status  to  that  portion  and  to 
the  comiiany  after  detachment.  Such  an  ollicer  continues  to  do  duty 
Avith  his  company,  for  the  act  of  detachment  creates  no  new  organiza- 
tion, but  makes  Avithin  and  under  the  company  or,<»;anization  a  ditfer- 
ent  disposition  of  the  company  for  the  better  ])erformance  of  its 
duties.  'J'herefore  the  detached  portion  is  and  remains  an  integral 
portion  of  the  company,  and  the  company  oilicer  on  dut}^  Avith  it, 
[)eing  on  duty  Avith  an  integral  portion  of  his  company,  is  on  duty 
with  his  comjiany.  The  status  I'cmains  unbroken;  it  is  not  atfected 
by  the  act  of  detachment,  it  sulleis  iu>  change  during  the  period  of 
detachment,  nor  Avill  it  be  affected  by  the  act  of  rejoining.  Because 
of  the  continuity  of  the  status  the  officers  and  men  folloAv  the  for- 
tunes of  the  detachment  throughout  the  ])eriod  of  detachment,  and 
upon  rejoining  ])roceed  to  perform  their  normal  duties  Avithout  the 
necessity  of  further  authority  to  that  end,  and,  indeed,  they  must 
do  so  nnless  competent  authority  intervenes  and  directs  otherAvise." 

(G-124.  J.  A.  (I.,  Nov.  18,  1912.) 


DETACHED  SERVICE:  Ordnance  Department;  detachment  or  detail  of  an 
officer  to  take  an  examination  with  a  view  to  detail  to  said  department. 

The  (luestion  Avas  submitted  as  to  Avhether  a  second  lieutenant  in 
the  Coast  Artillery  Cor])s  might  be  ordered  to  take  the  examination 
for  detail  to  the  Ordnance  Department  notwithstanding  he  had 
served  less  than  tAvo  years  Avith  his  corps,  in  vieAV  of  the  provisions 
of  the  Army  appropriation  act  of  August  24,  1912  (37  Stat.,  571). 
Said  act  ])rovides  that  on  and  after  December  15,  1912,  no  oHicer  of 
rank  below  that  of  nuijor  shall  be  detached  from  his  ti-oop,  battery, 
or  company  "  for  duty  of  any  kind  "  unless  he  shall  have  been  actually 
])resent  for  duty  Avith  his  troop,  battery,  or  comi^any  for  at  least  tAvo 
out  of  the  last  ])reco(ling  six  years,  but  adds:  ''  Nor  shall  anything  in 
this  proviso  be  held  to  ai)ply  to  the  detachment  or  detail  of  ollicers 
for  duty  *  *  *  in  the  iDrdnance  Department."  Tleld^  that  an 
ofllcer  Avho  had  not  had  the  requisite  service  Avith  his  company  to  en- 
title  him  to  detachment  or  detail  for  other  duty  generally,  might 
nevei-theless  be  diiected  t(v  take  the  examination  for  fitness  for  detail 
to  the  Ordnance  Department. 

(6-124,  J.  A.  G.,  Jan.  7,  1913.) 


DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    <.i.:m  i.Ai.        140 

EXTRA  DUTY:  Constmiction  of  statutes;  detailing  men  on  extra  duty  in 
the  Quartermaster  Corps. 

An  opinion  was  requested  as  to  whether  it  would  l^e  lejral  to  con- 
tinue the  temporary  employment  of  enlisted  men  on  extra  duty  in 
the  Quartermaster  Corps  after  the  provisions  of  section  4  of  the 
Army  appropriation  act  of  Au^rust  24.  1912  (37  Stat.,  593),  relatinjjj 
to  the  enlistment  of  men  in  the  Quartermaster  Corps  to  take  the 
place  of  enlisted  men  detailed  therein  on  extra  duty,  shall  have  been 
carried  into  full  effect. 

Section  1287  of  the  Revised  Statutes,  as  amended  by  the  act  <'f 
July  5,  1884  (23  Stat.,  110),  authorized  the  employment  of  enlisted 
men  on  extra  duty.  Section  4  of  the  act  of  August  24,  1912,  »upra^ 
authorized  the  enlistment  in  the  Quartermaster  Corps  of  a  certain 
number  of  men  to  ]:)ermanently  replace,  among  others,  all  enlisted 
men  of  tlie  line  of  the  Army  detailed  on  extra  duty  in  said  cori)s. 
Held,  that  said  act  of  Aug:ust  24,  1912,  did  not  expressly  or  by  impli- 
cation repeal  section  1287,  Eevised  Statutes,  and  amendments,  au- 
thorizing the  employment  of  enlisted  men  on  extra  duty,  and  that, 
after  the  enlisted  men  of  the  line  of  the  Anny  employed  on  extra 
duty  in  the  Quartermaster  Corps  have  been  substituted  by  the 
full  number  authorized  to  be  enlisted  for  this  purpose  by  section  4 
of  the  act  of  August  24,  1912,  additional  men  may  be  detailed  on 
extra  duty  in  said  corps  pursuant  to  said  section  1287  should  such 
detail,  in^  the  judgment  of  the  administrative  officers,  be  deemed 
necessary. 

(6-224.1,  J.  A.  G.,  Jan.  17,  1913.) 


LINE  OF  DITTY:  Effects  of  operation  to  remove  a  physical  defect  existing 

before  entering  the  service. 

A  surgical  operation  was  performed  upon  an  officer  to  remove  a 
physical'  defect  existing  before  he  entered  the  service,  as  a  measure 
of  caution  by  creating  a  physical  condition  favorable  to  the  officer's 
health.  The  operation  caused  an  illness  which  had  been  entered 
npon  the  records  as  not  in  line  of  duty.  The  defect  was  not  the 
result  of  the  officer's  misconduct  nor  was  it  such  as  to  unfit  hnn  for 
duty.  Held,  that  the  operation  may  be  regarded  as  the  proxnnate 
cause  of  the  illness  and  not  the  defect  itself  which  existed  i)rK)r  to 
his  entering  the  service.  The  illness  should  therefore  be  entere.l 
upon  the  records  as  in  line  of  duty. 
^  (54-011,  J.  A.  a,  Jan.  11,  1913.) 


MEDICAL  TREATMENT:  Officer  injured  while  on  leave. 

An  officer  while  on  leave  voluntarilv  engaged  in  the  work  of  in- 
specting horses  to  be  purchased  by  officers  of  the  Army  not  rciuired 
to  be  mounted,  and  while  so  engaged  was  severely  injured  by  being 
kicked  bv  one' of  the  horses  he  was  inspecting.  The  services  ot  a 
civilian  phvsician  were  procured  and  on  his  advice  a  special  tram 
was  hired  to  take  the  officer  to  his  station,  where  he  was  receiveil 
into  hospital.     He  was  sick  from  the  effects  of  the  injury  for  a 

93668°— 17 10 


146       DIGEST'  OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GEXEKAL. 

period  in  hospital  and  afterwards  in  quarters,  which  sickness  was 
characterized  as  in  line  of  duty.  HeJd,  that  officers  on  leave  can  not 
claim  the  benefit  of  medical  attendance  at  the  exi^nse  of  the  Gov- 
ernment when  away  from  their  proper  stations,  and  neither  the  bill 
for  the  services  of'  the  civilian  physician  nor  that  for  extra  train 
service  can  be  paid  from  public  funds.  Held  further,  that  the  fact 
that  the  officer's  sickness  while  in  hospital  and  in  quarters  was  char- 
acterized as  in  line  of  duty  does  not  affect  the  situation,  as  after  his 
return  to  his  station  he  was  no  longer  in  a  leave  status. 
(72-300,  J.  A.  G.,  Jan.  28,  1913.) 


NATIONAL  CEMETERIES:   Superintendents;  evidence  of  disability  of  ap- 
plicant for  position  of. 

Section  4874.  Eevised  Statutes,  provides: 

"  The  superintendents  of  the  national  cemeteries  shall  be  selected 
from  meritorious  and  trustworthy  soldiers  *  *  *  who  have  l>een 
honorably  mustered  out  or  discharged  *  *  *  and  who  may  have 
been  disabled  for  active  field  service  in  the  line  of  duty." 

A  soldier  of  the  Civil  War  was  enlisted  and  had  been  a  prisoner. 
He  was  paroled,  and  afterwards  discharged  by  order  of  a  civil 
court,  a  corporal,  on  account  of  his  being  a  minor,  and  enlisting 
w^ithout  the  consent  of  his  parents.  Held,  that  there  is  nothing 
in  this  record  to  show  that  the  soldier  was  "  disabled  for  active 
field  service  in  the  line  of  duty,"  but  the  reason  given  for  his  dis- 
charge would  indicate  that  he  was  not  so  disabled,  and  the  soldier 
is  not  eligible  for  appointment  as  superintendent  of  a  national 
cemetery. 

(80-I-13.  J.  A.  G.,  Jan.  3.  1913.) 

The  applicant  for  the  position  of  superintendent  of  a  national 
cemetery,  an  ex-soldier,  had  theretofore  filed  a  claim  for  pension 
based  upon  disability  incurred  in  the  military  service.  His  claim 
was  rejected  upon  the  ground  of  insufficient  evidence.  Congress 
subsequently  granted  him  a  pension  by  private  act.  The  report 
of  the  congressional  committee  in  his  case  shows  that  while  there 
existed  some  evidence  of  disability  incurred  in  the  service,  it  was 
not  sufficiently  conclusive  to  establish  his  claim  under  the  law, 
but  that  the  soldier  should,  in  view  of  all  the  facts  in  the  case,  be 
gi^en  the  benefit  of  the  doubt.  Held,  that  the  action  of  Congress 
in  gi'anting  the  pension  may  be  accepted  as  a  sufficient  basis  for 
regarding  the  disability  as  incurred  in  the  service  so  as  to  bring  the 
applicant  within  the  provisions  of  section  4874,  Revised  Statutes, 
and  that  he  can  legally  be  appointed  to  the  position  of  superin- 
tendent of  a  national  cemeterv. 

(80-413.  J.  A.  G.,  Jan.  17. "1913.) 


OFnCEE.S:  Promotion;  suspension  from,  for  one  year  for  failure  to  pass 
examination  other  than  physical. 

Section  5  of  the  act  of  October  1,  1890  (26  Stat.,  562),  reads  in  part 
"  That  the   President   be,   and  he   is  hereby,   authorized  to   pre- 
scribe a  svstem  of  examination  of  all  officers  of  the  Armv  below  the 


DIGEST    OF    OPINIOXS   OF    THE    JUDGE    ADVOCATE   GENEBAL.        147 

rank  of  major  to  determine  their  fitness  for  prfjuiotion  *  *  - 
And  provided,  That  if  any  officer  fails  to  pass  a  sati>la<lurv  examina- 
tion and  IS  reported  unfit  for  promotion,  the  (.llicer  next'lx'low  liim 
in  rank,  having  passed  such  examination,  sliall  receive  the  iiru- 
motion." 

After  providing  for  the  retirement  of  an  officer  found  incapaci- 
tated for  service  by  reason  of  physical  disabilitv  contracted  in  line 
of  duty,  the  statute  adds: 

"But  if  he  should  fail  for  any  other  reason,  he  shall  he  siisiH-ndtMl 
from  promotion  for  one  year,  when  he  shall  l)e  reexamined,  and  in 
case  of  failure  on  such  reexamination  he  sliall  be  honorablv  dis- 
charged, with  one  year's  pay,  from  the  Aimy.'' 

Upon  examination  for  promotion,  a  capt;iiii  of  Fit-Id  Artillery  was 
found  and  reported  deficient  in  his  practical  knowledge  of  the 
drill  regulations  of  his  arm  of  the  service.  His  promotion  to  the 
next  higher  grade  was  therefore  not  recommended  l)y  the  exinuiuing 
board.  The  proceedings  and  finding  of  the  lioard  weie  duly  up- 
proved  and  the  officer  notified  accordingly,  and  he  was  also  notified 
that  he  had  been  suspended  from  promotion  for  one  year  under  the 
provisions  of  the  act  of  October  1.  1890,  Tie  sul:>se(|uently  submitted 
statements  to  the  effect  that  he  had  been  detached  from  duty  with  his 
branch  of  the  service  during  the  greater  portion  of  the  four  years 
immediately  preceding  his  examination,  and  had  been  engaged  npon 
duty  which  did  not  give  him  an  opportunity  to  become  practically 
proficient  or  to  remain  practically  proficient  in  the  handling  c»f  a  bat- 
tery or  battalion  of  Field  Artillery,  He  accordingly  requested  that 
his  examination  be  "  resumed"  after  a  suitable  perioil  f»f  ser\  ice  with 
his  regiment  for  further  determination  of  his  fitness  for  pi-oiuotion. 

Held,  that  as  the  officer  has  been  duly  examined  acconling  to  law 
and  regulations  and  found  and  declared  to  be  disqualified  foi-  pio- 
motion;  as  the  law  by  necessary  implication  forbids  a  reexamination 
or  a  second  examination  until  after  suspension  from  pioiuotion  for 
one  year;  as  the  duly  qualified  officer  next  below  the  one  found  defi- 
cient has  become  entitled  to  promotion  in  advance  of  the  latter:  an«l 
as  the  statute  applicable  to  the  case  has  in  fact  been  jnit  in  operation, 
an  order  purporting  to  "extend,"  or  to  authorize  the  "resumption" 
of,  the  examination  of  the  officer  found  deficient.  "  with  a  view  to 
determining  more  satisfactorily  ceitain  questions  concerning  his 
qualifications,"  would  amount  to  a  revocation  of  the  final  appro\al 
theretofore  given  in  respect  of  his  examination,  Avould  result  in  grant- 
ing him  a  reexamination  or  a  second  examination  without  subjecting 
him  to  the  suspension  from  promotion  which  tlie  law  recjuires.  an<l 
might  deprive  another  officer  of  an  accrued  legal  right:  and  tliat 
therefore,  such  order  mav  not  legally  be  issued.  (  .  KV244,  hcpt.  L. 
100-2:  C.  22818,  April  21.  "1008:  C.  28645.  July  5.  1011. 
(64-221.3,  J.  A.  G..  Jan.  28.  1913.) 


OFFICERS:  Resignation  of.  to  take  effect  at  a  future  date  and  withdr.v.  r 
after  acceptance. 
An  officer  of  the  Army  tendered  his  resignation  to  take  elTect  at 
a  future  date,  which  resignation  was  duly  accepted  l)y  (be  I  ••';"••"<; 
Thereafter  and  before  the  time  for  his  resignation  to  take  effect  Im 
desired  to  withdraw  the  same.     Held,  that  as  the  resignation  ten- 


148       DIGEST   or   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

dered  had  not  in  fact  become  effective,  as  the  individual  who  had 
tendered  the  same  was  still  an  officer  of  the  Army,  and  as  no  rights 
of  another  had  intervened,  the  acceptance  of  the  tender  may  be  re- 
called and  the  officer  permitted  to  withdraw  the  same.  14  Op.  Atty. 
Gen.,  261 ;  Throop  on  Public  Officers.  406. 
(04-334,  J.  A.  G.,  Jan.  25,  1913.) 


PAY  CLERKS:  Of  the  Army;  assignment  of  quarters  to,  at  a  post  where 
there  are  troops. 

By  the  act  of  March  3,  1911  (36  Stat.,  1044),  it  was  provided  that 
the  pay  and  allowances  of  Army  paymasters'  clerks  (now  pay 
clerks)  "  shall  be  the  same  as  provided  by  law  for  Navy  paymasters' 
clerks  on  shore  duty."  Paymasters'  clerks  in  the  Navy  are  by  law 
entitled  to  receive  the  same  pay  and  allowances  "  as  warrant  officers 
of  like  length  of  service  in  the  Navy."  The  act  of  March  3,  1901 
(31  Stat.,  1107),  provides  that  warrant  officers  of  the  Navy  shall  re- 
ceive '•  the  same  commutation  for  quarters  as  second  lieutenants  of 
the  Marine  Corps";  and  by  section  1612,  Revised  Statutes,  officers 
of  the  Marine  Corps  receive  the  same  pay  and  allowances  as  officers 
of  like  grade  in  the  Infantry  of  the  Army. 

On  application  of  a  pay  clerk  serving  at  a  post  where  there  were 
troops  for  assignments  of  quarters,  Held,  that  he  is  entitled  when  on 
duty  at  a  post  with  troops  to  the  same  number  of  rooms  as  quarters 
as  a  second  lieutenant  of  the  Army,  and  to  such  quarters  as  may 
be  assigned  to  commissioned  officers,  but  that  he  has  no  right  of 
selection  under  paragraph  1042,  Army  Regulations  of  1910,  of  quar- 
ters occupied  bv  any  commissioned  officer. 

(6-134,  J.  A.'  G.,  Jan.  17,  1913.) 


PAY  OF  SOLDIERS:  Deduction  of  pay  for  absence  from  duty  by  reason  of 
intemperate  use  of  drug's  or  alcoholic  liquors,  or  other  misconduct. 

The  Army  appropriation  act  of  August  24,  1912  (37  Stat.,  572), 
provides : 

"No  officer  or  enlisted  man  in  active  service  who  shall  be  absent 
from  duty  on  account  of  disease  resulting  from  his  own  intemperate 
use  of  drugs  or  alcoholic  liquors,  or  other  misconduct,  shall  receive 
pay  for  the  period  of  such  absence  from  any  part  of  the  appropria- 
tion in  this  act  for  the  pay  of  officers  or  enlisted  men." 

Cases  were  presented  of  several  soldiers  Avho,  through  their  own 
misconduct  prior  to  their  present  enlistment  and  prior  to  the  passage 
of  the  act,  had  become  infected  with  venereal  disease,  which  necessi- 
tated their  treatment  in  hospital  and  consequent  absence  from  duty. 
Held,  that  the  act  in  question,  having  for  its  object  the  regulation  of 
the  future  conduct  of  the  soldier  and  not  merely  the  saving  Avhich 
might  result  to  the  United  States  by  the  deduction  of  pay  for  absences 
occasioned  by  their  misconduct,  is  prospective  in  its  operation  and 
penalizes  only  misconduct  and  its  consequent  absence  occurring  after 
the  passage  of  the  act  and  after  the  beginning  of  a  soldier's  current 
enlistment;  it  is  not  to  be  construed  as  penalizing  past  offenses.  No 
deductions  should  therefore  be  made  from  the  pay  of  soldiers  absent 
from  duty  resulting  from  misconduct  which  occurred  before  the  pas- 
sage of  the  act  or  before  their  current  enlistments  began.     Held,  fur- 


DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.        149 

thcr^  tliat  wliere  a  soldier  siiffeiincf  from  a  disease  acquired  throuf'li 
his  misconduct  is  properly  ordered  to  hospital  for  treatment,  notwith- 
standing he  may  be  able  to  perform  duty  at  the  time,  the  absence  from 
duty  occasioned  thereby  must  be  regarded  as  caused  by  his  own  mis- 
conduct, and  if  tlie  case  falls  within  the  operation  of  the  law  a  deduc- 
tion of  pay  shouhl  be  made  accoi-dingly. 

(72-214,  J.  A.  G.,  Jan.  2-'3,  1913.) 

Note. — The  above  views  were  concurred  in  by  the  Comptroller  of 
the  Treasury  in  a  decisicm  of  January  30,  1913,  to  the  Secretary  of 
War. 

QUARTEBS:  Change  of  station;  commutation. 

An  officer  was  ordered  to  proceed  from  a  post  where  he  had  been 
stationed  to  a  city  to  take  charge  of  a  recruiting  office  at  that  place 
"  until  further  orders.''  After  three  months  he  was  relieved  by  an- 
other officer  under  orders  which  recited  that  the  first  officer,  upon  be- 
ing thus  relieved,  "  will  return  to  his  proper  station."  The  first- 
mentioned  officer,  before  entering  upon  duty  at  the  recruiting  station, 
asked  permission  for  his  family  to  occupy  his  quarters  at  his  old 
station  until  he  could  determine  the  length  of  his  detail  or  make  other 
arrangements,  such  occupancy  not  to  deprive  any  otlier  officer  of  the 
use  of  said  quarters,  which  request  was  approved  by  the  commanding 
officer.  Fleld^  that  the  officer's  orders  effected  a  change  of  station 
from  the  place  where  he  had  been  on  dut}'  to  tlie  recruiting  station, 
and  that  he  was  entitled  to  connnutation  of  quarters  at  the  latter 
station  upon  making  the  usual  showing  recjuired  in  order  to  obtain 
this  allowance. 

(72-333,  J.  A.  G.,  Jan.  20,  1913.) 


RESPONSIBILITY:  Erroneous  entry  of  period  of  enlistment  on  a  soldier's 
descriptive  card. 

The  recruiting  officer  at  a  post  entered  upon  a  descriptive  and 
assignment  card  of  a  recruit  that  he  was  serving  in  his  second  enlist- 
ment period,  when,  as  a  matter  of  fact,  the  papers  disclosed  that  lie 
Avas  serving  only  in  his  first  enlistment.  The  adjutant  general  of  the 
post  with  the  same  data  before  him  certified  to  the  correctness  of  this 
entry.  The  soldier  was  transferred  to  a  company  on  such  descriptive 
and  assignment  card,  and  overpaid  in  consequence  of  the  erroneous 
entry.  Ileld^  that  the  responsibility  for  the  overpayment  i-ests  upon 
both  the  recruiting  officer  and  the  adjutant  of  the  post,  and  tliat  they 
shoidd  contribute  etiually  to  making  good  the  overpayment. 

(72-515.1.  J.  A.  G.,  Jan.  G,  1913.) 


RETIREMENT:  Service  required;  counting   double  time  for  service  in  the 
Philippine  Scouts. 

The  act  of  February  14,  1885  (23  Stat,  305),  authorizes  the  retire- 
ment of  enlisted  men  after  thirty  years'  service,  and  the  acts  of  March 
2,  1903  (32  Stat,  934).  and  of  Jiine  12,  190(5  (34  Stat..  248).  provide 
that  where  enlisted  men  have  served  "  as  commissioned  officers  of 


150   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

Philippine  Scouts,"  and  after  muster  out  or  discharge,  shall  return  to 
the  ranks  of  the  Regular  Army,  they  shall  be  entitled  to  count  the 
service  in  computing  the  time  necessary  to  enable  them  to  retire  as 
enlisted  men.  The  act  of  April  '2o,  190l  (o3  Stat.,  204),  provides  for 
double  credit  for  service  in  the  Philippine  Islands  in  computing 
length  of  service  for  retirement.  The  Army  appropriation  act  of 
August  24,  1912  (37  Stat.,  575),  prohibits  credit  for  double  time  for 
foreign  service  in  computing  length  of  service  for  retirement  "  to 
those  who  hereafter  enlist." 

Held,  that  in  view  of  section  G  of  the  act  of  February  2,  1901  (31 
Stat.,  757),  which  authorizes  the  appointment  of  enlisted  men  of  the 
Regular  Army  as  commissioned  officers  of  the  I*hilippine  Scouts  for 
periods  of  four  years  each,  commissions  in  the  Philippine  Scouts  may 
be  construed  as  analogous  to  enlistment  periods,  and  that  where  the 
commission  was  issued  prior  to  August  21,  1912,  service  therein 
diu'ing  the  four-year  period  should  be  counted  as  double  time  for  pur- 
poses of  retirement.  Held,  further,  that  service  under  each  commis- 
sion for  a  further  term  of  four  years  after  August  21,  1912,  or  under 
a  reenlistment  in  the  Army  after  said  date,  comes  within  the  oper- 
ation of  the  act,  and  that  such  service  can  not  be  counted  double  for 
retirement  purposes. 

(88-823,  J.  A.  G.,  Jan.  7,  1913.) 


TRANSPORTATION:  Of  horses  of  officers  on  change  of  station;  shipment 
in  excess  of  the  authorized  number  from  point  of  purchase  to  last 
station. 

The  act  of  March  23.  1910  (36  Stat.,  255),  provides  that— 

"  Hereafter  transportation  may  be  furnished  for  the  owned  horses 
of  an  officer,  not  exceeding  the  niunber  authorized  by  law,  from  point 
of  purchase  to  his  station,  when  he  would  have  been  entitled  to  and 
did  not  have  his  authorized  number  of  owned  horses  shipped  upon  his 
last  change  of  station,  and  when  the  cost  of  shipment  does  not  exceed 
that  from  his  old  to  his  new  station." 

Udd^  that  it  would  be  feasible  to  provide  by  regulation  that  an 
officer  might  have  his  authorized  number  of  horses  transported  at 
(jovernment  expense  from  place  of  purchase  to  his  last  station  under 
the  conditions  stated  under  said  act,  even  though  the  cost  of  such 
transportation  be  greater  than  the  cost  from  his  old  to  his  new  sta- 
tion, upon  depositing  Avith  the  shipping  officer  an  amount  suffi- 
cient to  cover  such  excess  of  cost. 

(94-231.1,  J.  A.  G.,  Dec.  20,  1912.) 

Upon  consideration  of  the  question  as  to  whether  an  officer  might 
procure  the  shipment  of  horses  owned  b}^  him  in  excess  of  the  num- 
ber which  he  is  entitled  to  have  maintained  at  public  expense  from 
point  of  purchase  to  last  station,  by  first  paying  to  the  shipping 
officer  the  cost  of  such  shipment.  Held,  that  the  shipment  of  such 
horses  on  a  Government  bill  of  lading  with  the  horses  he  is  entitled 
to  keep  and  use  in  the  Government  service  is  not  authorized,  even 
though  the  officer  should  advance  an  amount  sufficient  to  pay  for 
such  shipment.    18  Comp.  Dec,  494. 

(94-231.1,  J.  A.  G.,  Jan.  IG,  1913.) 


DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE   GENERAL.        151 

TRAVEL  ALLOWANCES:  Of  discharged  soldiers;   furnishing  subsistence 
during  travel  over  a  longer  route. 

The  Chief  of  the  Quartermaster  Corps  submitted  the  question  of 
whether,  under  the  provisions  of  the  act  of  August  24,  1912  (37  Stat., 
57(»).  in  furnishiujG:  transportation  in  kind  and  subsistence  to  soldiers 
on  discharge,  such  transpoi'tation  may  be  furnished  "via  anv  route 
between  competitive  points  where  the  cost  of  transportation  and 
sleeping-car  accommodations  does  not  exceed  the  cost  via  the  rf)ute 
over  which  the  official  (listance  is  fi<?ured  as  published  in  the  official 
distance  table  of  the  AVar  Dei)artment,"'  provided  that  no  adtli- 
tional  cost  of  subsistence  is  paid  on  account  of  the  additional  travel 
involved  in  the  selection  of  the  longer  route. 

Held,  that  the  transjjortation  authorized  is  between  points  and 
there  is  no  provision  that  it  shall  be  over  the  shortest  usually 
traveled  route,  although  travel  could  not  properly  be  allowed  over 
a  longer  route  if  the  cost,  including  commutation  of  subsistence, 
be  greater  than  over  the  shorter  route;  but  if  sucli  cost  is  greater 
over  the  longer  route,  transportation  over  such  route  may  never- 
theless be  furnished  if  the  soldier  indicates  his  preference  to  travel 
over  such  route  and  his  willingness  to  accept  couunutation  of  sub- 
sistence not  exceeding  the  amount  he  would  rec2ive  should  he  travel 
over  the  shorter  i-oute. 

(94-332,  J.  A.  G.,  Jan.  27,  1913.) 


DECISIONS  OF  THE  COMPTROLLEK  OF  THE  TREASURY. 

(Digests  prepared  iu  tlie  office  of  the  Judge  Advocate  General.) 

FORAGE  ALLOWANCE:  Officers  of  the  Medical  Reserve  Corps  on  leave  of 
absence. 

An  officer  of  the  Medical  Reserve  Corps  of  the  Army  on  active 
duty  was  granted  a  leave  of  ab.sence  and  ordered  to  his  home  to  be 
relieved  from  active  duty  at  the  expiration  of  the  said  period  of 
leave.  The  question  was  submitted  by  the  Secretary  of  War  as 
to  whether  or  not  lie  was  entitled  to  be  furnished  forage  by  the 
Quartermaster  Corps  for  mounts  owned  and  kept  by  him  at  his 
home  during  the  period  of  his  leave  of  absence. 

The  act  of  April  23,  1908  (35  Stat.,  68,  69),  provides  for  the  issue 
of  commissions  as  first  lieutenants  to  certain  graduates  of  medical 
schools  found  qualified  on  examination,  which  conunissions  .'^hall 
confer  upon  the  holders  "  all  the  authority,  rights,  and  privileges  of 
commissioned  officers  of  the  like  grade  in  the  Medical  Corps  of  the 
United  States  Army.  exce])t  promotions,  but  only  when  called  uito 
active  duty,"  as  thereinafter  provided,  "and  during  the  period  of 
such  active  duty."  The  act  further  provides  that  during  the  period 
of  such  active  service  said  officers  "shall  be  entitled  to  the  pay  and 
allowances  of  first  lieutenants  of  the  Medical  Corps."  Held,  that 
the  acts  of  June  18..  1878  (20  Stat..  150),  and  February  24.  1881 
(21  Stat.,  347),  providing  for  the  furnishing  of  forage  in  kind  to 
officers  of  the  Armv  who  own  and  keep  their  own  mounts,  contem- 
plate the  furnishinir  of  such  forage  to  officers  for  hor.^es  owned  and 
kept  by  them  in  the  performance  of  their  official  military  duties 
when  on  duty  as  in  said  act  specified,  and  at  places  where  they  are 


152       DIGEST  OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEKAL. 

on  duty,  and  that  an  officer  on  leave  of  absence  is  not  on  duty  and 
is  not  entitled  to  forage  for  a  horse  owned  and  kept  by  liim  while 
in  that  status. 

(Comp.  of  the  Treas.,  Jan.  17,  1913.) 


HEAT  AND  LIGHT  AliLOWANCE:  Payment  of  full  allowance;  reimburse- 
ment for  amount  used. 

An  officer  whose  authorized  allowance  for  quarters  was  five  rooms, 
occupied  as  quarters  a  private  residence  consisting  of  ten  rooms, 
heated  by  natural  gas  and  lighted  by  electricity,  having  but  one 
meter  for  gas  and  one  for  electricity.  Through  a  misunderstanding 
the  accounts  for  heat  and  light  were  paid  direct  by  the  officer 
entitled  to  the  allowance,  and  he  was  reimbursed  by  the  Quarter- 
master to  the  maximum  allowance  prescribed  for  an  officer  of  his 
grade  in  paragraph  1073,  Army  Regulations,  1910.  The  amounts 
were  disallowed  by  the  Auditor  for  the  War  Department  in  the 
Quartermaster's  accounts,  and  the  officer  was  called  upon  to  refund 
the  amounts  paid.  On  application  to  the  Comptroller  of  the  Treas- 
ury the  disallowance  made  by  the  auditor  was  sustained  upon  the 
authority  of  a  decision  of  the  comptroller  dated  March  16,  1912, 
holding  that  where  an  officer  occupies  as  quarters  his  own  private 
residence  containing  more  rooms  than  are  prescribed  by  laAv  as  the 
authorized  allowance  for  an  officer  of  his  rank,  the  Quartermaster's 
Department  is  authorized  to  supply  heat  and  light  necessary  for 
his  quarters  not  to  exceed  the  quantity  prescribed  by  regulations 
for  the  number  of  rooms  to  which  his  rank  entitles  him,  and  that  an 
officer,  under  such  circumstances,  is  not  entitled  to  commutation 
of  the  heat  and  light  allowances.  On  consideration  of  the  case  as  a 
request  for  an  advance  decision,  Ilcld^  that  upon  the  presentation 
of  proper  vouchers  the  officer  in  this  case  can  now  be  reimbursed  to 
the  extent  of  the  gas  and  electricity  consumed  by  him  not  exceed- 
ing the  amount  alloAved  by  regulations  for  his  quarters  for  the 
period  in  question,  and  that  the  officer  having  used  during  said 
period  386,000  cubic  feet  of  gas  for  heating,  he  may  be  reimbursed 
for  the  cost  of  159.000  cubic  feet,  the  amount  of  his  allowance,  at 
regulation  rates,  and  that  having  used  317,000  watt  hours  of  electric 
current  for  the  same  period  for  light,  as  against  his  allowance  of 
516,000  watt  hours  for  the  same  period,  he  can  be  reimbursed  for  the 
cost  of  the  full  amount  used  at  regulation  rates. 

(Comp.  of  the  Treas.,  Jan.  6,  1913.) 


HEAT   AND   LIGHT   ALLOWANCE:   To  officers   on  promotion;   date  upon 
which  increased  allowance  becomes  effective;  Naval  officer. 

Section  13  of  the  Navy  personnel  act  of  March  3,  1899  (30  Stat., 
1007),  provides  that  commissioned  officers  of  the  line  of  the  Navy 
and  of  the  Medical  and  Pay  Corps  shall  receive  the  same  allowances, 
except  forage,  as  are  or  may  be  provided  by  law  for  officers  of  corre- 
sponding rank  in  the  Army.  The  question  was  submitted  as  to  the 
date  from  which  the  landlord  of  a  naval  officer  in  receipt  of  com- 
mutation of  quarters  was  entitled  to  increased  compensation,  by  rea- 
son of  the  officer's  promotion,  for  furnishing  such  officer  with  heat 
and  light.     The  officer's  ad  interim  commission  was  signed  by  the 


DIGEST   or   OPINIONS  OF    THE   JUDGE   ADVOCATE   GENERAL.       153 

President  November  19,  1912,  but  the  appointment  ^vas  to  fill  a 
vacancy  by  promotion  and  the  oflicei-  took  rank  from  August  '22, 
1912.  After  referring  to  the  hnvs  and  regulations  governing  heat 
and  light  allowances  for  officers  of  the  Army  and  to  a  prior  decision 
of  the  office,  it  was  IleJd^  that  the  landlord  became  entitled  to  be  paid 
for  heat  and  light  furnished  at  the  rate  allowed  for  an  officer  of  the 
grade  to  which  the  officer  was  promoted  only  from  November  19, 
1912,  the  date  of  his  ad  Interim  appointment,  and  not  from  the  date 
Avhen  he  was  to  take  rank. 

(Comp.  of  the  Treas.,  Jan.  8,  1913.) 


TRAVEL  ALLOWANCES:  Mileage  and  expenses;  change  of  station  while 
on  leave. 

A  lieutenant  of  the  Coast  Artillery  while  stationed  in  the  Philip- 
pine Islands  was  transferred  to  a  post  in  the  United  States,  tiie 
change  to  become  effective  October  l,  1912.  Prior  to  this  date,  he 
was  given  leave  of  absence  with  permission  to  return  to  the  United 
States  by  way  of  Europe  and  thereupon  he  m  as  to  join  his  new  sta- 
tion. While  on  this  leave,  his  station  in  the  United  States  was  again 
changed,  and  he  was  ordered  to  proceed  to  the  new  station  thus 
designated.  He  did  not  receive  this  order  until  after  his  arrival  in 
the  United  States  and  near  the  post  to  which  he  had  been  at  first 
ordered.    He  thereupon  proceeded  to  join  his  new  station. 

The  law  authorizing  the  payment  of  mileage  to  officers  of  the 
Army  is  found  in  the  act  of  June  12.  1906  (34  Stat.,  217),  which  act, 
after  fixing  the  allowance,  provides  that — 

"  When  the  station  of  an  officer  is  changed  while  he  is  on  leave  of 
absence  he  will  on  joining  the  new  station  be  entitled  to  mileage  for 
the  distance  to  the  new  station  from  the  place  where  he  received  the 
order  directing  the  change,  provided  the  distance  be  no  greater  than 
from  the  old  to  the  new  station;  but  if  the  distance  be  greater  he 
will  be  entitled  to  mileage  for  a  distance  equal  to  that  from  the  old 
to  the  new  station  only :  And.  provided  ju.rther^  That  for  all  sea  travel 
actual  expenses  only  shall  be  paid  to  officers     *     *     *." 

Held,  that  the  law  relating  to  change  of  station  while  an  officer  is 
on  leave  applies  to  those  cases  where  he  is  under  orders  to  return  to 
his  old  station,  and  that  as  at  the  time  of  going  on  leave  this  officer 
was  imder  orders  to  change  station  without  troops  with  destination 
at  a  post  in  the  United  States,  such  provision  does  not  apply,  and 
he  is  entitled  to  mileage  and  actual  expenses  which  the  law  gives  for 
travel,  from  his  station  in  the  Philippine  Islands  to  the  last  station 
to  which  he  was  ordered  in  the  United  States;  and  in  deternuning 
such  actual  expenses  across  the  Pacific  Ocean,  the  amount  generally 
paid  by  an  officer  for  subsistence  (m  a  transport  at  or  about  the  tune 
the  officer  was  relieved  from  duty  in  the  I*hilippine  Islands  may  be 
accepted  as  the  amount  due  for  such  portion  of  the  journey.  The 
order  changing  his  destination  after  he  had  gone  on  leave  amountetl 
to  a  modification  of  his  former  order,  and  did  not  amount  to  a  change 
of  station  from  the  post  to  which  he  first  had  been  ordered  m  tlie 
United  States,  and  where  he  could  not  have  acquired  a  station  until 
his  arrival  thereat. 

(Comp.  of  the  Treas.,  Jan.  9.  1913.) 


BULLETIN  8. 

But.letin1  WAE  department, 

No.  8.     J  Washington,  Blarch  18,  1913. 

The  following  digest  of  certain  opinions  of  the  Judge  Advocate 
General  of  the  Army  for  the  month  of  February,  1913,  and  of  cer- 
tain decisions  of  the  Comptroller  of  the  Treasury  and  of  the  Court 
of  Claims,  is  published  for  the  information  of  the  service  in 
general. 

[L>019504.  A.  G.  O.] 

By  order  of  the  Secretary  or  War  : 

LEONARD  WOOD. 

Major  General,  Chief  of  Staff. 
Official  : 

GEO.  ANDREWS, 

Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENESAL. 

ABSENCE:  From  duty  due  to  misconduct;  stoppage  of  pay. 

The  Army  appropriation  act  of  August  21,  1012  (37  Stat..  572), 
provides  that  a  soldier  shall  not  receive  pay  from  the  appropriation 
contained  in  the  act  while  he  may  be  absent  from  active  duty  on 
account  of  disease  "  resulting  from  his  own  intemperate  use  of  drugs, 
or  alcoholic  liquors,  or  other  misconduct."  A  soldier  was  sick  in 
hospital  for  one  day  and  consequently  absent  from  active  duty  by 
reason  of  injuries  received  in  a  fist  fight  in  which  he  voluntarily 
engaged.  Tleld^  That  the  words  "  other  misconduct "  in  the  statute 
is  limited  by  the  rule  of  ejusdem  generis  to  conduct  of  the  same 
general  character  as  that  indicated  b}^  the  words  preceding  them, 
to  wit,  "  intemperate  use  of  drugs,  or  alcoholic  liquors  "  (36  Cyc, 
1119),  or  misconduct  consisting  in  the  intemperate  or  improper 
indulgence  of  natural  or  acquired  appetites:  that  the  misconduct 
of  the  soldier  in  this  case  Avas  not  of  such  general  character:  and 
that  no  deduction  shoidd  be  made  from  his  pay  while  absent  from 
active  duty  on  account  thereof. 

(72-210;  J.  A.  G.,  Feb.  14,  1913.) 


CONTRACTORS:   Damag^e  to  heating-  system  while  under  control  of  con- 
tractors before  being  turned  over  to  United  States. 

Compensation  for  damages  was  claimed  by  contractors,  who  were 

installing  a  hot  water  heating  system  at  an  Army  post,  for  injuries 

to  said  plant  caused  by  freezing.    At  the  time  the  damage  occurred 

tlie  system  was  being  adjusted  by  the  contractors  prior  to  accept- 

151 


DIGEST    or    OPINIONS   OF    THE    JUIKiE    ADVOCATE   GENERAL.        155 

aiice  by  the  United  States  nnd  was  under  their  control.  }\o  in>tnic- 
tions  were  given  by  the  contractor^  relative  to  the  proper  operation 
of  the  system,  and  it  api)eared  that  when  the  va[\es  of  said  ^,ystfnl 
were  closed  they  entirely  stopped  the  How  of  water,  it  l>eing  iii  this 
respect  unlike  many  other  systems,  which  allow  a  slight  How  at  all 
times  in  order  to  prevent  freezing. 

Held,  that  the  system  being  under  the  control  of  the  contractors 
at  the  time  the  damage  occurred,  and  the  contractors  having  been 
negligent  in  not  taking  proper  steps  to  prevent  in  jury  from  freez- 
ing, the  claim  for  extra  compensation  on  accotmt  of  siuh  injury 
should  be  disallowed. 

(76-732,  J.  A.  G..  Feb.  21.  1013.) 


CONTRACTS:   Assig-nment   of   when  original  contractor  is  unable   to  com- 
plete the  work. 

A  company  having  a  contract  wit4i  the  United  States  to  supplv 
coal  during  the  fiscal  j-ear  ending  June  30,  1913.  became  finan- 
cially embarrassed  and  a  new  company  was  oi'ganized  by  the  prin- 
cipal stockholders  of  the  old  comi)any  to  continue  the  business  of 
the  old  company,  and  the  contract  assigned  to  such  new  company. 
The  surety  company  guaranteeing  the  old  contract  executed  a  sup- 
plemental instrument  whereby  it  agreed  that  its  bond  should  cover 
the  faithful  performance  of  the  contract  by  the  assignee. 

Held,  that  while  the  better  form  would  have  been  a  tripartite 
contract  supported  by  a  new  bond  whereby  the  assignee  would 
contract  directly  with  the  United  States  for  the  comi)letion  (tf  the 
contract  and  the  assignor  would  agree  directly  with  the  United 
States  that  all  payments  should  be  nuide  to  the  assignee,  the  facts 
here  stated  are  not  such  as  to  bring  the  case  within  the  prohibition 
of  section  3737,  Revised  Statutes,  forbidding  the  transfei-  of  con- 
tracts with  the  United  States,  and  the  Chief  of  the  Quartermaster 
Corps  may  therefore  appro^  e  the  assignment. 

(76-520,  J.  A.  G.,  Feb.  20,  1913.)      ^      • 


CONTRACTS:  Parties  to;  including  persons  other  than  the  bidder. 

A  contract  was  awarded  to  a  party  for  the  construction  of  a  power 
plant  under  the  War  Department  upon  a  bid  submitted  under 
instructions  which  required  the  bidder  to  enter  into  a  contract  an(( 
to  give  bond  with  satisfactory  surety  for  its  faithfid  performance, 
including  also  a  stipulation  for  the  protection  of  laborers  and  mate- 
rial men.  The  conti-actor  signed  the  contract  but.  owing  to  his 
financial  condition.  Avas  unable  to  furnish  the  re<|uiivd  Ixmd  for  the 
due  performance  of  the  contract,  because  of  which  the  same  was  uot 
signed  on  behalf  of  the  United  States.  In  order  to  sei-ure  such 
surety  it  was  requested  that  a  represent atiA'e  of  a  surety  company  be 
permitt€d  to  join  as  a  partner  in  the  contract,  so  as  to  give  the  surety 
company  such  joint  control  of  the  receipts  and  disbursenu'nts  arising; 
out  of  the  contract  as  would  make  it  reasonably  safe  for  the  com]);uiy 
to  become  surety  for  the  due  performance  of  the  work  ami  for  the 
payment  of  laborer^  and  material  men. 


156       DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

Held^  that  there  is  no  legal  objection  to  permitting  the  representa- 
tive of  the  surety  company  to  be  joined  as  a  copartner  or  as  a  joint 
contractor,  as  may  be  desired;  and  that  the  position  of  the  repre- 
sentative of  the  surety  company  should  not  be  regarded  as  dis- 
<iualifying  that  company  from  becoming  surety  on  the  bond,  there 
being  no  law  or  regulation  prohibiting  it. 

(T6-331.2,  J.  A.  G.,  Feb.  24,  1913.)  ^ 


CONTHACTS:  Purclia.se  in  open  market  after  advertising  without  result. 

Bids  were  opened  at  various  points  after  due  advertisement,  for 
the  purchase  of  marching  shoes  manufactured  in  accordance  with 
Government  specifications.  Only  one  bid  was  received,  that  being 
submitted  by  a  manufacturer  at  Boston,  Mass.,  and  a  contract  was 
awarded  to  such  bidder  for  the  shoes  covered  by  the  advertisement. 
Telegrams  were  sent  to  the  depot  headquarters  at  said  points  to 
ascertain  and  report  why  shoe  manufacturers  other  than  the  one 
named  had  failed  to  bid  under  the  advertisement.  The  replies 
received  showed  that  the  manufacturers  gave  various  reasons  for 
such  failure,  the  principal  ones  being  that  the  specifications  and 
inspection  of  the  Government  were  too  rigid,  and  that  the  march- 
ing shoes  of  the  new  pattern  were  of  a  type  not  in  general  use  by 
the  public  so  that  there  would  be  difficulty  in  disposing  of  rejected 
shoes  without  considerable  loss. 

Held,  that  under  these  circumstances  the  law  regarding  advertis- 
ing for  contracts  may  be  regarded  as  substantially  complied  with, 
the  failure  of  the  bidders  to  submit  bids  and  the  result  of  the  in- 
quiries following  such  failure  clearly  showing  that  further  advertis- 
ing for  shoes  at  this  time  would  be  useless;  and  that  therefore  a  con- 
tract ma}^  now  be  made  for  the  purchase  of  shoes  upon  such  terms  as 
may  be  considered  reasonable,  without  further  advertising. 

(76-125,  Feb.  21,  1913.) 


DETAILS:  Eligibility  for  redetail  to  Ordnance  Department. 

Section  26  of  the  act  of  February  2,  1901  *(31  Stat.,  755),  appli- 
cable to  all  staff  corps  and  departments  therein  specified,  including 
the  Ordnance  Department,  provides  that — ■ 

"  When  any  vacancy  except  that  of  chief  of  the  department  or 
corps  shall  occur,  which  can  not  be  filled  by  promotion  as  provided 
in  this  section,  it  shall  be  filled  by  detail  from  the  line  of  the  Army. 
*  *  *  Such  detail  shall  be  made  from  tlie  grade  in  which  the 
vacancies  exist,  under  such  system  of  examination  as  the  President 
may  from  time  to  time  prescribe. 

■■'All  officers  so  detailed  shall  serve  for  a  period  of  four  years,  at 
the  expiration  of  which  time  tliey  shall  return  to  duty  with  the 
line,  and  officers  below  the  rank  of  lieutenant  colonel  shall  not  again 
be  eligible  for  selection  in  any  staff  department  until  they  shall  have 
served  two  years  with  the  line." 

Section  1  of  the  act  of  June  25,  1906  (34  Stat.,  455),  constituted 
the  official  personnel  of  the  Ordnance  Department  and  section  2  of 


DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.        157 

the  said  act  made  special  provision  for  detail  to  said  department  as 
follows: 

"  That  details  to  the  Ordnance  Department  under  the  provisions 
of  the  act  of  February  second,  nineteen  hundred  and  one,  may  be 
made  from  the  Army  at  lar^e  from  the  grade  in  which  the  vacancy 
exists,  or  from  the  ^'ade  below:  Prorkle(h  Tluit  no  ollicer  shall  bii 
so  detailed  except  upon  the  recommendation  of  a  board  of  ordnance 
officers,  and  after  at  least  one  examination,  which  shall  be  open  to 
competition:  And  provided  fvrther^  That  officers  so  detailed  in 
grades  below  that  of  major  shall  not  be  again  eligible  for  such  detail 
until  after  they  shall  have  served  for  at  least  one  year  out  of  that 
department." 

A  captain  in  the  Coast  Artillery  Corps,  while  a  first  lieutenant 
therein,  was  detailed  as  captain  in  the  Ordnance  Department,  was 
promoted  to  the  grade  of  captain  in  liis  corps,  and  was  thereafter 
relieved  from  his  detail  in  the  Ordnance  Department.  It  was  de- 
sired to  redetail  him  as  major  in  the  Ordnance  Department  before 
he  had  served  one  year  out  of  that  department. 

II eld ^  that  although  section  26  of  the  act  of  Februaiy  "2,  1901,  was 
applicable  to  the  Ordnance  Department,  the  act  of  June  25,  1900, 
prescribed  a  special  rule  for  that  department,  and  while  the  former 
prescribes  as  a  general  rule  for  eligibility  for  redetail  an  intervening 
service  of  two  years  with  the  line,  redetails  may  be  made  imder  the 
latter  act  to  the  Ordnance  Department  after  a  service  of  at  least 
one  year  out  of  that  department;  held  further,  that  the  recjuirement 
of  one  years  service  out  of  the  department  applies  only  to  details 
below  the  grade  of  major,  and  that  the  officer  relieved  from  duty 
under  his  detail  as  captain  is  not  ineligible  for  redetail  to  the  depart- 
ment in  the  grade  of  major,  although  he  may  not  have  served  for 
one  year  outside  of  that  department  since  he  was  relieved  from  his 
detail  as  captain  therein. 

(6-225  J.  A.  G.,  Feb.  12,  1913.) 


DISCHARGE:  Character  of,  after  returning  from  desertion  under  the 
President's  proclamation  of  March  11,  1865. 
A  soldier  enlisted  July  1.  I860,  for  five  years  and  deserted  July  29, 
1863.  While  still  a  deserter  and  during  the  war  he  was  mustered 
into  the  volunteer  service,  from  which  he  deserted  and  enlisted  in 
another  organization  of  the  volunteer  service  which  he  abandoned 
in  order  to  surrender  himself,  under  the  President's  proclamation 
of  March  11,  1865,  as  a  deserter  from  his  original  service.  He  was 
discharged  from  his  first  service  by  reason  of  expiration  of  term 
March  13,  1867,  having  made  ffood  time  lost  in  desertion.  Xo  action 
was  taken  with  respect  to  his^desertion  from  the  volunteer  service 
or  with  respect  to  his  leaving  the  same  in  order  to  surrender  himself 

as  a  deserter.  ^      .  ,        •     i  •  i 

Held,  that  the  pardon  extended  by  the  President  in  his  proclama- 
tion to  those  returning  from  desertion  within  a  certain  time  applu"<l 
to  all  soldiers  who  Avere  at  the  time  in  desertion  and.  therefore,  to 
desertions  from  enlistments  entered  into  prior  to  the  beginning  of 
the  Civil  War;  that  such  pardon  operated  to  absolve  the  deserter 


158        DIGEST    OF    OPIXIOXS   OF    THE    JUDGE    ADVOCATE    GEISTERAL. 

from  the  consequences  and  disabilities  attaching  to  that  offense,  but 
not  to  remove  the  charge  or  fact  of  desertion  in  either  of  the  other 
two  instances  in  the  present  case;  held  further,  that  this  sohiier  was 
honorably  discharged  only  from  his  first  enlistment  and  from  no 
other  organization  in  which  he  served  or  enlisted  during  tiie  Civil 
War. 

(26-710,  J.  A.  Cx.,  Feb.  7,  1913.) 


EIGHT-HOUR  ItAW:  Application  to  verbal  and  other  informal  contracts. 

The  eight-hour  law  of  June  19,  1912  (37  Stat.,  137),  provides,  in 
its  first  section,  that  every  contract  made  for  or  on  behalf  of  the 
United  States— 

"Which  may  require  or  involve  the  employment  of  laborers  or 
mechanics  shall  contain  a  provision  that  no  laborer  or  mechanic  doing 
any  part  of  the  work  contemplated  by  the  contract,  in  the  employ  of 
the  contractor  or  any  subcontractor  contracting  for  any  part  of  said 
work  contemplated,'  shall  be  required  or  permitted  to  work  more 
than  eight  hours  in  any  one  calendar  day  upon  such  work,'' 

Section  3711,  Eevised  Statutes,  requires  that — 

"It  shall  be  the  duty  of  the  Secretary  of  War.  of  the  Secretary  of 
the  Navy,  and  of  the  Secretary  of  the  Interior  to  cause  and  require 
every  contract  made  by  them  severally  on  behalf  of  the  Government, 
or  hy  their  officers  under  them  appointed  to  make  such  contracts, 
to  1)6  reduced  to  writing,  and  signed  by  the  contracting  parties  with 
their  names  at  the  end  thereof." 

Held,  that  while  verbal  contracts  and  those  evidenced  by  written 
offer  and  acceptance  or  other  memoranda  not  amounting  to  a  com- 
pliance with  section  3711,  Revised  Statutes,  are  not  binding  upon 
the  Government  as  to  any  executory  portion  thereof,  yet  when  per- 
formed they  are  to  be  treated  in  all  respects  as  valid  contracts,  and 
the  adjustment  of  the  rights  of  the  parties  thereto  must  be  made  ac- 
cording to  their  terms;  that  while  in  course  of  performance  they 
should  also  be  treated  as  valid  contracts;  and  that  the  proA^sions  of 
the  eight-hour  law  of  June  19,  1912,  should  therefore  be  applied  to 
such  contracts  during  their  performance  as  though  they  had  been 
executed  according  to  the  formalities  required  bv  law. 

(32-300,  J.  A.  G.,  Feb.  26,  1913.) 


EIGHT-HOUR  LAW:  Employment  of  laborers  and  mechanics  on  separate 
contracts  on  the  same  day. 

A  manufacturing  company  had  a  contract  with  the  Government 
coming  within  the  operation  of  the  eight-hour  law  of  June  19,  1912 
(37  Stat.,  137).  section  1  of  which  requires  that  every  contract  made 
for  or  on  behalf  of  the  United  States  involving  the  employment  of 
laborers  or  mechanics — 

"  Shall  contain  a  provision  that  no  laborer  or  mechanic  doing  any 
part  of  the  work  contemplated  by  the  contract,  in  the  employ  of  the 
contractor  or  any  subcontractor  contracting  for  any  part  of  said 
work  contemplated,  shall  be  required  or  permitted  to  work  more  than 
eight  hours  in  any  one  calendar  day." 


DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL.        159 

I'^pon  request  for  an  opinion  as  to  wliether  a  contractor,  after  ein- 
l)loying  laborers  and  mechanics  on  a  contract  coniinp;  within  the 
eight-hour  law  for  eight  hours  in  any  calendar  day,  might  continue 
such  employment  for  an  additional  time  on  tlie  same  day  on  another 
contract  not  coming  within  the  operation  of  said  law.  held,  that  the 
statute  operates  only  upon  the  particular  contract  sultject  to  its  pro- 
visions; that  the  supervision  by  Government  officials  recjuired  by  the 
statute  extends  only  to  work  contemplated  by  the  contract :  and  that 
a  (lovernment  contractor  under  a  contract  coming  within  the  o|)era- 
tion  of  the  law%  may  employ  laborei'S  and  mechanics  thereon  for 
eight  hours  a  day  and  thereafter  continue  their  employment  (»n  the 
same  day  on  another  contract  witli  the  Go\ernment  not  coming 
within  the  operation  of  the  law,  without  incurring  the  penalties  pre- 
scribed by  said  law. 

(32-300,  J.  A.  G.,  Fel).  5,  1913.) 


MILITIA:  Organization  of  enlisted  men  of,  into  a  reserve. 

Section  3  of  the  act  of  Januarv  21, 1003  (32  Stat.,  775),  as  amended 
bv  section  2  of  the  act  of  May  27,  1008  (35  Stat.,  399),  provides 
that— 

"  On  and  after  January  21.  1010.  tlie  organization,  armament,  and 
discipline  of  the  Organized  Militia  in  the  several  States  and  Ten-i- 
tories  and  the  District  of  Colinnbia  shall  be  the  same  as  that  which 
is  now  or  may  hereafter  be  prescribed  for  the  Regular  Army  of  the 
Ignited  States,  subject  in  time  of  peace  to  such  general  exceptions 
as  may  be  authorized  by  the  Secretary  of  "War." 

Section  2  of  the  Army  appropriation  act  of  August  24,  1012  (37 
Stat.,  500),  provides  for  a  seven-year  enlistment  period,  and  also, 
among  oilier  things,  provides  for  an  Army  reserve. 

Held,  that  the  Army  reserve  provided  for  by  said  act  of  August 
24,  1012,  is  not  an  organization  within  the  meaning  of  the  act  of 
January  21,  1003,  and  that  the  Secretary  of  War.  under  existing  law, 
can  not  require  the  Organized  Militia  of  the  several  States  to  organ- 
ize and  maintain  reserves  similar  to  that  provided  for  the  Regular 
Armv. 

(0-300,  J.  A.  G.,  Feb.  17,  101'3.) 


I 


OFFICERS  OF  THE  ARMY:  Appointment  and  lineal  rank. 

Section  1219  of  the  Revised  Statutes  provides — 

"In  fixing  relative  rank  between  officers  of  the  same  grade  and 
date  of  appointment  and  commission,  the  time  which  each  may 
have  actuallv  served  as  a  commissioned  officer  of  the  United  States, 
whether  continuously  or  at  different  periods,  shall  be  taken  into 
account.  And  in  computing  such  time,  no  distinction  shall  l>e  made 
[between  service  as  a  commissioned  officer  in  the  Regular  Army  and 
service  since  the  10th  day  of  April,  ISfil.  in  the  volunteer  forces, 
whether  under  appointment  or  commission  from  the  Presulent  or 
from  the  governor  of  a  State."  ■  ^    ^  r 

Section  3  of  the  act  of  June  18.  1878  (20  Stat.,  150).  provu  ed  for 
the  filling  of  vacancies  in  the  grade  of  second  lieutenant  by   the 


160       DIGEST  OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

appointment  of  meritorious  noncommissioned  officers,  but  was  silent 
as  to  the  rule  for  determining  their  relative  rank,  and  the  rule  re- 
mained unchanged  until  the  act  of  July  30,  1892,  section  3  of  which 
provides  (27  Stat.,  336)  — 

"  The  vacancies  in  the  grade  of  second  lieutenant  heretofore  filled 
by  the  promotion  of  meritorious  noncommissioned  officers  of  the 
Army,  under  the  provisions  of  section  3  of  the  act  approved  June  18, 
1878,  shall  be  filled  by  the  appointment  of  competitors  favorably  rec- 
ommended under  this  act,  in  the  order  of  merit  established  by  the 
final  examination," 

An  enlisted  man  was  in  1900  appointed  a  second  lieutenant  in  the 
Army,  after  a  competitive  examination  in  pursuance  of  said  act  of 
July  30,  1892,  Ke  had  previously  seen  service  as  a  commissioned 
officer  of  volunteers  in  the  Spanish  War,  which  service  was  not  taken 
into  consideration  in  fixing  his  relative  rank. 

Section  28  of  the  act  of  February  2.  1901  (31  Stat,,  755),  created 
certain  vacancies  and  prescribed  a  rule  for  fixing  the  rank  of  first 
and  second  lieutenants  appointed  under  its  provisions  based  on  prior 
commissioned  service. 

Ileld^  that  section  1219,  Eevised  Statutes,  is  general  in  its  terms, 
and  that  the  act  of  July  30,  1892,  makes  a  special  exception  thereto 
in  the  case  of  persons  entering  the  grade  of  second  lieutenant  from 
enlistment  by  providing  for  the  fixing  of  their  relative  rank  accord- 
ing to  merit  determined  at  the  time  of  examination,  without  regard 
to  prior  commissioned  service,  Held^  further,  that  the  vacancies 
created  by  the  act  of  February  2,  1901,  were  filled  according  to  the 
special  provision  made  in  said  act,  which  has  no  application  to  this 
officer's  case,  and  that  the  officer  in  this  case,  having  been  appointed 
j)rior  to  said  act,  does  not  come  within  its  terms  so  as  to  have  his 
commissioned  service  counted,  but  is  protected  by  its  provisions,  so 
that  no  appointee  tliereunder  having  less  commissioned  ser\^ce  than 
he  can  be  placed  above  him. as  second  lieutenant. 

(82-131,  J.  A.  G,,  Feb.  3,  1913.) 


OFFICIAL  RECOEBS:  Producing  confidential,  in  obedience  to  subpoena. 

A  subpoena  was  issued  out  of  the  Supreme  Court  of  the  District  of 
Columbia  and  served  upon  the  Chief  of  the  Quartermaster  Corps 
requiring  his  appearance  before  a  notary  public  to  testify  as  a  witness 
in  a  case  pending  between  private  parties  in  the  Federal  court,  the 
])urpose  evidently  being  to  secure  copies  of  certain  reports  and  rec- 
ommendations relating  to  the  contract  referred  to  in  the  subpoena, 
which  copies  had  been  denied  by  the  Acting  Secretary  of  War. 

Held,  that  the  report  of  inspection  and  test  of  the  samples  sub- 
mitted by  the  several  competitors  for  a  contract  is  confidential  in  its 
nature,  and  the  contents  should  not  be  disclosed,  as  such  disclosure 
would  be  contrary  to  public  policy  in  that  its  publicity  would  tend 
to  hamper  the  freedom  of  inspection  and  recommendation  by  inspect- 
ing officers;  Held  further,  that  the  Chief  of  the  Quartermaster  Corps 
caia  not  legally  be  required  to  produce  or  read  said  report  in  evidence. 

(14-231,  J.  A.  G.,  Feb.  8,  1913.) 


DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.        161 

PAY  BOLLS;  Certification  of;  muster  for  pay. 

The  certificate  upon  the  form  of  pay  roll  approved  by  the  Coiiip- 
Ivoller  of  the  Treasury  April  8,  1912,  reads: 

"  I  certify  that  I  have  this  day  mustered  this  oi-ganization  and  find 
all  present  and  absent  accounted  for  on  this  roll,  as  re(|nired  by  Army 
Eegulations." 

Objection  was  made  by  an  officer  to  signing  this  certificate  because 
the  roll  did  not  contain  all  the  entries  re<]nired  by  the  Twelfth  Aiticle 
of  War  to  be  inserted  on  muster  rolls,  and  he  therefore  believed  that 
in  signing  such  a  roll  he  Avould  be  signing  a  false  muster  and  would 
inibject  himself  to  the  penalty  prescribed  in  the  Fouileenth  Article 
of  War. 

The  Army  Regulations  of  1910  provide  as  follows: 

"  Troops  Avill  be  mustered  for  pay  on  the  last  day  of  each  month 
unless  otherwise  ordered  by  the  War  Department."     (l*ai-.  447.) 

"Each  stated  muster  will,  when  practicable,  be  preceded  by  a 
minute  and  careful  inspection."     (Par.  448.) 

"At  every  muster  of  troops  pay  rolls  will  be  prepared,  signed,  and 
disposed  of  in  accordance  with  the  directions  on  the  blank  forms 
furnished  by  the  Paymaster  General  of  the  Army,  and  at  each  bi- 
monthly muster  on  the  last  day  of  February,  April,  June,  August, 
October,  and  December  muster  rolls  will  be  prepared,  signed,  and 
disposed  of  in  accordance  with  the  directions  on  the  blank  foi-ms 
furnished  by  The  Adjutant  General  of  the  Army."     (Par.  820.) 

The  present  form  of  pay  roll  omits  the  names  of  commissioned 
officers  of  the  organization,  and  it  is  directed  that  "  onl,y  such  i-emarks 
as  affect  the  soldiers'  pay  will  be  entered"  thereon.  The  Twelfth 
Article  of  War  requires  that  the  time  of  absence  of  officers  and 
enlisted  men,  together  with  the  reasons  therefor,  shall  be  inserted  on 
th.e  muster  rolls  opposite  the  names  of  the  respective  absentees. 

Held.,  that  while  the  present  monthly  pay  roll  has  many  elements 
in  common  with  the  bimonthly  muster  roll,  their  legal  relation  to  the 
administration  of  the  Army  is  not  necessarily  the  same,  and  that  it 
is  clear  that  the  Twelfth  Article  of  War  has  application  to  the  muster 
roll  rather  than  to  the  pay  roll. 

(72-201,  J.  A.  G.,  Jan.  23,  1913.) 

Nq-pj, — jn  yie^  of  the  reasons  expressed  in  the  above  opinion,  the  Secretary  of  War 
decided  that  it  was  not  necessary  to  amend  the  oeititicate  on  the  pay  loll. 


PUBLIC  PROPERTY:  Title  to  lands  in  street  improved  at  Government 
expense. 
The  streets  in  a  city  leading  from  a  military  reservation  to  tlie 
railroad  depot  and  over  which  the  bulk  of  the  heavy  haiding  was 
that  between  the  station  and  the  military  post,  were  in  very  bad 
condition,  so  that  at  times  they  were  almost  impassable.  The  city 
was  not  able  or  was  not  willing  to  repair  the  same  at  its  own  ex- 
pense, but  proposed  that  the  Government  should  funiish  one-third 
the  amount  necessary  for  the  improvement  and  the  city  should 
furnish  the  other  two-thirds.  The  commanding  officei-  of  the  post 
was  of  the  opinion  that  the  pro]iortion  of  cost  asked  fi-oiu  the  Un^ited 
States  was  fair,  considering  the  amount  of  hauling  which  the  Gov- 

93668°— 17 11 


162   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ernment  does  over  the  streets  in  question.  The  Government  owned 
neither  the  fee  nor  right  of  way  in  the  streets. 

Held^  that  as  the  bulk  of  the  heavy  hauling  over  said  streets 
pertained  to  the  military  reservation,  and  as  tiie  local  authorities 
were  unwilling  to  pay  for  such  repair  as  would  answer  the  needs  of 
the  post  without  contribution  from  the  Government  toward  such 
repair,  it  was  competent  to  enter  into  a  contract  for  the  payment  of 
one-third  of  the  cost  of  the  repair  as  proposed,  and  that  the  fact 
that  the  expenditure  would  be  upon  pulilic  streets  over  which 
the  future  hauling  for  the  reservation  would  have  to  be  done,  might 
be  regarded  as  ample  assurance  that  the  Government  would  receive 
the  benefit  of  the  expenditure. 

(5-24T,  J.  A.  G.,  Feb.  24,  1913.) 


RESPONSIBILITY:  For  damage  to  public  property  through  neglect. 

A  private  soldier  was  charged  with  the  duties  of  janitor  at  a 
post  exchange  building  provided  with  a  steam-heating  plant.  The 
weather  turned  suddenly  cold  and  the  heating  system  froze  up, 
resulting  in  the  bursting' of  pipes  and  other  connections  to  the  dam- 
age of  about  $100.  The  heat  maintained  in  the  system  was  sufficient 
to  have  prevented  its  freezing  up  under  ordinary  conditions  at 
that  season  of  the  year,  but  not  during  the  unusual  cold  spell  which 
occurred,  and  the  soldier  was  negligent  in  failing  to  keep  up  proper 
heat  under  the  conditions  which  existed.  The  system,  however,  was 
defective  in  that  it  did  not  drain  properly,  and  water  was  conse- 
quently left  standing  in  the  pipes,  the  freezing  of  which  caused  the 
damage. 

Held,,  that  the  soldier  was  responsible  only  for  the  reasonable  and 
probable  results  of  his  own  negligence;  that  the  damage  was  not  the 
direct  result  of  his  neglect,  but  was  due  to  the  defective  heating 
system,  which  should  have  permitted  the  drainage  of  the  water  from 
tiie  pipes;  and  that  consequently  the  amount  of  the  damage  should 
not  be  deducted  from  the  soldier's  pay.  The  punishment  for  this 
neglect,  if  any,  should  be  inflicted  through  the  medium  of  a  proper 
court. 

(80-016,  J.  A.  G.,  Feb.  13,  191B.) 


SUPPLIES:   Electric   light;   payment   for  electric   current   not   included   in 
regular  bills  through  failure  to  be  registered  by  the  meter 

By  reason  of  defective  wiring  a  portion  of  the  current  used  in 
electric  lighting  at  an  Army  post  did  not  pass  through  the  meter 
and  consequently  was  not  taken  up  and  paid  for  in  the  monthly 
bills  for  lighting.  Afterwards  the  mistake  was  discovered  and  a 
bill  presented  for  the  estimated  amount  of  current  so  consumed  and 
not  paid  for.  The  contractor  furnishing  the  light  was  himself 
negligent  in  installing  wiring  in  such  a  manner  as  to  cause  such 
defective  registering  of  the  current  used.  Eelds  that  the  previous 
settlements  of  accounts  for  lighting  were  not  conclusive  so  as  to 
preclude  a  reopening  of  the  account  and  the  payment  for  the  current 
erroneously   omitted   by   mutual   mistake   from   previous  bills,   and 


DIGEST    OF    OPINIOXS    OF    THE    JUDGE    ADVOCATE    GENERAL.        163 

that  the  fact  that  the  contractor  himself  may  ha\e  contributed  to 
the  mistake  was  immaterial,  as  no  damage  was  caused  thereby  for 
which  compensation  was  soiifjht. 
(76-73:2.  J.  A.  G.,  Feb.  21,"  1013.) 


SUPPLIES:   Purchase  of,  for  Walter  Reed  General  Hospital.   District  of 
Columbia. 

Section  4  of  the  act  of  June  17,  1910  (3G  Stat,  nSl),  provides 
generally  that  all  supplies,  fuel,  ice,  stationery,  and  other  miscel- 
laneous supplies  "  for  the  executive  departments  and  other  (Jov- 
ernment  establishments  in  "Washington,"  when  the  public  exigencies 
do  not  require  immediate  deliver}^  "shall  be  advertised  and  con- 
tracted for  by  the  Secretary  of  the  Treasury,"  and  provides  for  a 
general  supply  conniiittee  io  make  an  annual  schedule  of  the  re- 
quired miscellaneous  supplies  and  to  perform  certain  other  duties 
connected  with  carrying  the  provisions  of  said  act  into  effect. 

On  request  for  an  opinion  as  to  whether  supplies  required  for  the 
"Walter  Reed  General  Hospital,  Takoma  Park.  D.  C.  nnist  be  secured 
under  contract  with  the  general  supply  committee  in  pursuance  of 
said  act,  held,  that  inasmuch  as  said  hospital  is  not  a  part  of  the  civil 
establishment  known  as  the  War  Department,  but  is  substantially 
an  Army  hospital  or  post  located  for  convenience  in  the  District  of 
Columbia,  the  supplies  necessary  therefor,  the  same  as  those  required 
for  the  military  post  of  "Washington  Barracks,  should  be  procured 
under  a  contract  made  with  the  proper  department  of  the  Army,  and 
that  the  act  of  June  17,  1910,  has  no  application. 
(11-120.1,  J.  A.  C^.,  Feb.  28,  1913.) 


TRANSPORTATION:  Of  household  effects  on  change  of  station. 

An  officer  was  directed  to  change  station  to  a  post  where  there 
were  no  available  quarters  for  his  accommodation,  and  had  his 
household  effects  shipped  to  the  post  and  stored  in  the  warehouse 
of  the  depot  quartermaster  until  such  time  as  he  could  secure  quar- 
ters for  himself.  Upon  securing  such  quarters,  he  was  informed  that 
he  would  have  to  bear  the  expense  of  hauling  his  goods  from  the 
warehouse  to  his  residence,  situated  some  distance  from  the  post, 
and  he  was  consequentlv  compelled  to  move  them  at  his  own  expense. 

Held,  that  the  officer" on  change  of  station  was  entitled  to  ha\e  his 
authorized  allowance  of  househokl  effects  transported  to  his  new  st:i- 
tion  at  public  expense,  and,  if  (juarters  in  kind  were  not  avadabh> 
and  he  w^as  compelled  to  procure  quarters  for  himself,  this  included 
transportation  to  the  quarters  thus  secured;  but  his  quarters  must  be 
selected  with  a  view  to  public  interests  rather  than  acconbng  to  his 
ow^n  preference,  and  he  was  only  entitled  to  have  his  allowance  ()f 
personal  effects  transported  at  public  expense  to  the  nearest  point 
to  his  post  of  duty  where  he  could  have  procured  suitable  <|ua iters 
at  an  expense  commensurate  with  his  salary:  hild,  therefore,  tluit  the 
officer  should  be  reimbursed  in  this  case  to  the  amount  that  it  would 
have  cost  the  Government  to  have  transported  his  effects  from  the 


164        DIGEST    OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

■warehouse  of  the  depot  quartermaster  to  quarters  selected  within 
such  limits. 

(94-233,  J.  A.  G.,  Feb.  14,  1913.) 


TRANSPORTATION":  Use  of  parcel  post;  appropriation  for  postage. 

The  act  of  August  24,  1912  (37  Stat.,  580),  under  the  heading 
''Incidental  expenses.  Quartermaster's  Department,"  names  "post- 
age" as  one  of  the  items  for  which  appropriation  is  made.  The 
Postmaster  General  having  decided  that  parcels  exceeding  4  pounds 
in  weight  can  not  be  sent  by  the  ordinary  (Tovernment  frank,  but 
require  parcel-post  stamps  if  transported  through  the  postal  service 
provided  for  under  the  parcel-post  act  of  August  24,  1912  (37  Stat., 
539),  held,  that  the  parcel-post  act  did  not  broaden  the  franking 
privilege  to  cover  the  service  within  the  scope  of  that  act.  and  where 
it  is  desired  to  send  packages  coming  within  the  operation  of  the 
parcel-post  act,  it  will  be  necessary  to  purchase  parcel-post  stamps 
therefor ;  held  furth^r^  that  the  appropriation  for  postage  mentioned 
in  the  Army  appropriation  act  of  August  24.  1912,  under  "  Incidental 
expenses.  Quartermaster's  Department,''  was  intended  to  cover  post- 
age to  foreign  countries  and  registration  of  packages,  and  that  if 
packages  are  sent  by  parcel-post  for  the  Army  it  will  be  necessary 
to  purchase  the  sttimps  therefor  from  the  appropriation  for  the 
transportation  of  the  Army  and  its  supplies. 
(22-020,  J.  A.  G.,  Feb.  7,  1913.) 


TRANSPORTATION:  Furnishing  sleeping-car  accommodations  to  enlisted 
men. 

The  Army  Regulations  provide  for  second-class  transportation  and 
tourist  sleeping-car  accommodations  for  enlisted  men  not  noncom- 
missioned officers  traveling  on  trains,  but  make  no  provision  for 
them  where  such  second-class  transportation  and  tourist  sleeping- 
car  accommodations  are  not  available.  The  instructions  of  the 
Quartermaster  General  of  May  18,  1912,  absolutely  prohibit  the 
issue  of  standard  sleeping-car  accommodations  to  enlisted  men  not 
noncommissioned  officers.  Five  private  soldiers  were  furnished, 
upon  Government  transportation  request,  with  standard  sleeping- 
car  accommodations  in  connection  with  first-class  transportation  for 
a  journey  requiring  night  travel,  no  second-class  transportation  or 
tourist  sleeping-car  accommodations  being  available.  Held^  that  an 
order  involving  transportation  of  enlisted  men  by  train  is  sufficient 
authority  for  procuring  the  usual  and  most  available  means  of  trans- 
portation where  the  class  prescribed  by  the  regulation  is  not  obtain- 
able; that  it  was  competent,  however,  for  the  Quartermaster  General 
to  prohibit  the  furnishing  of  standard  sleeping-car  accommodations 
to  enlisted  men,  not  being  noncommissioned  officers;  and  that  as  the 
I  transportation  in  question  was  furnished  contrary  to  such  instruction 
'  of  the  Quartermaster  General,  the  cost  thereof  should  be  charged  to 
the  officer  responsible  for  furnishing  the  same. 
(94^240,  J.  A.  G.,  Feb.  5,  1913.) 


DIGEST  OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       165 

DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 
(Digests  prepared  in  the  oflBce  of  the  Judge  Advocate  (Jeueral.) 

ARMY:  Burial  expenses  of  officers  and  soldiers  and  of  civilian  employees; 
retired  otficer  on  active  duty. 

Appropriation  is  made  for  the  disposition  of  the  remains  of  officers 
and  soldiers  and  of  civilian  employees  of  the  Army  for  the  hscal 
year  1913,  in  the  sundry  civil  act  of  August  21,  1912 '(37  Stat.,  440), 
as  follows: 

"■  Disposition  of  remains  of  officers,  soldiers,  and  civilian  em- 
ployees, and  so  forth:  For  the  expense  of  interment,  or  of  jn-epa ra- 
tion and  transportation  to  their  homes  or  to  such  national  ceme- 
teries as  may  be  designated  by  proper  authority,  in  the  discretion  of 
the  Secretary  of  War,  of  the  remains  of  officers,  including  acting 
assistant  surgeons  and  enlisted  men  of  the  Army  active  list;  *  *  * 
and  in  any  case  where  the  expenses  of  burial  and  shipment  of  the 
remains  of  officers  or  enlisted  men  of  the  Army  who  died  on  the 
active  list  are  borne  by  individuals,  where  such  expenses  would  have 
been  law'ful  claims  against  the  Government,  reimbursement  to  such 
individuals  may  be  made  of  the  amount  allowed  by  the  Goveniment 
for  such  services,     *     *     *     $.57,500." 

A  decision  of  the  comptroller  was  desired  as  to  whether  payment 
was  authorized  of  the  expenses  of  preparing  for  shipment  and  cost 
of  transporting  from  Little  Rock,  Ark.,  to  the  Arlington,  Va.,  Na- 
tional Cemetery  for  burial,  the  remains  of  a  retired  Army  officer 
who  had  died  Avhile  on  active  duty  as  recruiting  officer  at  the  recruit- 
ing office  at  Little  Rock,  Ark.  He  had  been  assigned  to  such  duty 
under  authority  of  the  act  of  April  23,  1904  (33  Stat.,  264),  which 
provides: 

"  The  Secretary  of  War  may  assign  retired  officers  of  the  Army, 
with  their  consent,  to  active  duty  in  recruiting  *  *  *  and  such 
officers  while  so  assigned  shall  receive  the  full  pay  and  allowances 
of  their  respective  grades." 

Held^  that  the  expense  of  preparing  and  transporting  the  remains 
of  an  officer  did  not  constitute  a  part  of  the  pay  and  allowances  of 
said  officer's  grade,  but  was  in  the  nature  of  a  gratuity  which  the 
Government  voluntarily  assumed  for  the  benefit  of  the  deceased 
officer's  family  or  estate;  that  there  was  no  other  appropriation  avail- 
able for  the  payment  of  such  expense  than  that  contained  in  tiie  act 
above  cited,  which  limited  payments  to  cases  of  deceased  officers  and 
soldiers  on  the  active  list;  that  the  act  of  April  23,  1904,  authorized 
the  assignment  of  retired  officers  to  active  duty,  but  did  not  authorize 
their  restoration  to  the  active  list;  and  that  the  officer  in  this  case, 
not  being  on  the  active  list,  payment  of  the  expenses  in  question  was 
not  authorized.  15  (^omp.  Dec,  230,  235. 
(Comp.  of  the  Treas.,  Feb.  20,  1913.) 


COMMUNICATIONS:  Telegrams  sent  to  delinquent  contractors. 

Two  telegi-ams  were  sent  by  the  Army  (juai-termaster  to  as  many 
delinquent  contractors  for  furnishing  supplies,  urging  immediate 
compliance  with  their  contracts,  and  another  to  a  contractor  notify- 


IGG       DIGEST  OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

ing  liim  that  supplies  shipped  by  him  under  his  contract  were  unfit 
for  use.  The  telegrams  were  not  sent  in  reply  to  any  telegram  or 
communication  from  the  contractors,  but  were  sent  by  the  Govern- 
ment agent  in  the  proper  and  orderly  transaction  of  the  business  of 
his  office. 

Held.,  that  such  telegrams  were  on  official  business,  and  payment 
therefor  was  authorized  if  the  account  was  otherwise  correct. 

(Comp.  of  the  Treas.,  Jan.  7,  1913.) 


COMMUNICATI0!N"S:   Telegrams   making  inquiries   as  to   whether  certain, 
persons  were  wanted  as  deserters. 

Telegrams  were  sent  collect  to  The  Adjutant  General  of  the  Army 
from  different  sources,  inquiring  whether  certain  men  named  or 
described  were  wanted  as  deserters  fTom  the  Army,  no  request  having 
been  made  for  such  telegrams.  It  did  not  appear  whether  the  men 
were  subsequently  delivered  up  as  deserters  or  not. 

Held.,  that  Army  Eegulation  121  of  1910  was  made  in  pursuance  of 
a  statute  authorizing  the  offering  of  rewards  for  the  apprehension 
and  delivery  of  deserters  from  the  Army,  and  provides  tliat  the  re- 
ward "  will  be  in  full  satisfaction  of  all  expenses  for  arresting,  keep- 
ing, and  delivering  the  deserter  or  other  escaped  military  prisoner," 
and  that  the  reward  should  include  the  cost  of  these  telegram.s,  which 
should  have  been  paid  for  by  the  persons  sending  them  and  receiving 
the  rewards.  The  telegraph  company  should  be  informed  that  it 
must  look  to  the  respective  senders  for  pavment. 

(Comp.  of  the  Treas.,  Feb.  3,  1913.) 


CONTRACTS:  Construction  of;  damages  for  failure  to  make  delivery  within 
a  specified  time. 

A  Government  contract  for  the  purchase  of  oats  during  the  fiscal 
year  1912  provided  for  the  delivery  of  said  oats  during  various 
periods  and  at  different  prices  for  said  periods  as  follows:  For  oats 
delivered  and  accepted  during  the  months  of  October,  November,  and 
December,  at  the  rate  of  $1.53  per  hundredweight ;  for  deliveries  dur- 
ing January,  February,  and  March,  1912,  at  the  rate  of  $1.61  per 
hundredweight;  and  for  deliveries  during  April,  May,  and  June, 
1912,  at  the  rate  of  $1.67  per  hundredweight.  Provision  was  also 
made  for  increasing  or  diminishing  the  quantities  mentioned  in  the 
contract  not  to  exceed  20  per  cent  at  the  option  of  the  United  States 
"  at  any  time  during  the  continuance  "  of  the  contract.  On  March 
18,  1912,  when  the  full  contract  quantity  had  been  ordered,  and,  so 
far  as  appeared,  had  been  delivered,  the  contractor  was  advised  by 
the  Government  that  it  would  exercise  its  option  of  ordering  the 
increased  quantity  of  20  per  cent ;  and  on  the  next  day  he  was  called 
u})on  to  furnish  such  additional  amount,  the  same  to  be  delivered 
on  or  before  March  31,  1912,  at  $1.61  per  hundredweight,  as  provided 
for  deliveries  made  and  accepted  during  that  month.  The  amount 
called  for  was  delivered  and  accepted  some  days  after  March  31, 
1912.  Payment  at  the  rate  specified  for  deliveries  during  that  month 
was  accepted  by  the  contractor  under  protest,  and  he  presented  a 


DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       1G7 

claim  for  tlie  difference  between  the  price  paid  and  the  price  fixed 
for  deliveries  after  March  31,  1912,  amounting  to  $252.48.  The  Gov- 
ernment under  the  contract  had  a  right,  had  tiie  order  of  Marcli  19, 
1912,  been  given  within  sufficient  time  to  allow  delixery  by  the  end 
of  that  month,  to  cancel  the  order  upon  failure  of  the  contractor  to 
make  such  delivery  and  to  purchase  a  like  <iuantity  of  oats  in  open 
market,  charging  the  contractor  with  the  difference  between  the  con- 
tract price  and  the  price  which  the  Cirovernment  would  ha\e  b'''-u 
compelled  to  pay  in  excess  thereof. 

On  appeal  from  the  action  of  the  Auditor  for  the  "War  De])artnient 
disallowing  the  claim:  lield^  that  the  parties  to  the  contract  luiving 
provided  a  remedy  and  a  measure  of  damages  in  case  of  failure  of 
the  contractor  to  make  deliveries  within  the  time  specified,  to  wit, 
the  purchase  by  the  Government  in  open  market  of  oats  of  the  quan- 
tity and  kind  demanded  under  the  contract,  charging  the  contractor 
with  the  difference  in  price  if  in  excess  of  the  c(mtract  price,  aiul  the 
Government  not  having  exercised  its  right,  but  having  accepted 
delivery  within  the  period  for  which  payments  should  have  been 
made  at  the  rate  of  $1.67  per  hundredweight,  the  oats  so  delivere<l 
must  be  paid  for  at  that  rate,  as  provided  in  the  contract.  The  claim 
was  therefore  allowed. 

(Comp.  of  the  Treas.,  Feb.  IT,  1912.) 


GOVERNMENT  AG-ENCIES:  Stoppage  of  soldier's  pay  to  reimburse  a  post 
exchange  for  overpayment  in  cashing  his  final  statements. 

A  man  enlisted  at  Jefferson  Barracks,  Mo.,, August  27.  1900,  and 
was  discharged  August  26,  1912,  at  Fort  Rosecrans,  Gal.,  by  expira- 
tion of  enlistment.  His  final  statements  on  discharge  were  cashed 
by  the  post  exchange  at  Fort  Rosecrans  upon  the  basis  that  he  was 
entitled  to  mileage  from  the  place  of  enlistment  to  the  place  of  dis- 
charge at  the  rate  of  4  cents  per  mile,  wdiereas  the  soldier  having 
been  discharged  after  the  passage  of  the  Army  appropriation  act  of 
August  24,  1912  (37  Stat.,  576),  was  entitled  to  mileage  only  at  tho 
rate  of  2  cents  per  mile  for  such  travel,  having  elected  to  receivo 
such  mileage  instead  of  transportation  in  kind  and  subsistence.  Ha 
was  thus  overpaid  by  the  post  exchange  on  his  final  statements  the 
sum  of  $43.07,  and  having  since  reenlisted  the  amount  was  collected 
from  him  on  the  pay  roll  of  his  company  and  deposited  to  the  credit 
of  the  United  States,  with  the  evident 'purpose  of  reimbursing  the 
post  exchange.  The  cashing  of  the  final  statements  by  the  post 
exchange  was  purely  a  matter  of  accommodation  to  the  soldier. 

On  claim  by  the  soldier  for  reimbursement:  UcU,  that  the  post 
exchange  was  not  a  voluntary  association,  but  an  institution  estab- 
lished by  the  Government  for  the  use  and  discipline  of  the  enlisted 
men,  and  that  the  collection  from  the  soldiei-  was  properly  nnule. 

(Comp.  of  the  Treas.,  Feb.  8,  1913.) 


PRIVATE  PROPERTY:  Loss  of  horse  belonging  to  an  Army  officer  while 

in  the  service;  act  of  March  3,  1885. 

The  act  of  March  3,  1885   (23  Stat..  350),  provides:  "That  the 

proper  accounting  officers  of  the  Treasury  be,  and  they  are  heieby, 

authorized  and  directed  to  examine  into,  ascertain,  and  determine 


168       DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

the  value  of  the  private  property  belonging  to  officers  and  enlisted 
men  in  the  military  service  of  the  United  States  which  has  been,  or 
may  hereafter  be,  lost  or  destroyed  in  the  military  service,"  nnder 
certain  conditions  stated 

Certain  provisos  were  added,  among  them  the  following: 

'•''Provided^  That  any  claim  which  shall  be  presented  and  acted 
on  under  authority  of  this  act  shall  be  held  as  finally  determined 
and  shall  never  thereafter  be  reopened  or  considered  *  *  * ;  And 
■provkled  further^  That  the  liability  of  the  Government  under  this 
act  shall  be  limited  to  such  articles  of  personal  property  as  the  Secre- 
tary of  War,  in  his  discretion,  shall  decide  to  be  reasonable,  useful, 
necessary,  and  proper  for  such  officer  and  soldier  while  in  quarters, 
engaged  in  the  public  service,  in  the  line  of  duty." 

A  captain  of  the  Army  claimed  under  said  act  reimbursement  in 
the  sum  of  $450,  alleged  value  of  a  horse  owned  by  him  which  had 
died  of  pneumonia  contracted  on  shipboard  while  being  transported 
to  the  officer's  station  in  Cuba,  the  officer  then  being  in  the  service 
of  the  United  States.  The  Auditor  for  the  War  Department  disal- 
lowed the  claim  on  the  ground  that  the  horse  had  died  of  a  disease 
not  necessarily  incident  to  or  peculiar  to  the  military  service.  The 
Assistant  Comptroller  dismissed  the  appeal  from  this  decision  for 
the  specific  reason  that  a  horse  is  not  an  article  of  property  belonging 
to  an  officer  or  an  enlisted  man  in  the  military  service  within  the 
purview  of  said  act  of  Congress.  The  Secretary  of  War  had  certified 
that  the  horse  was  useful,  necessary,  and  proper  for  this  officer  while 
in  quarters,  engaged  in  the  public  service  in  line  of  duty. 

On  reconsideration  of  the  appeal :  Held^  that  the  term  "  article  of 
personal  property  "  mentioned  in  the  proviso  above  quoted  includes 
a  horse,  which  therefore  comes  within  the  provisions  of  said  act  of 
Congress,  and  reimbursement  may  be  made  of  the  value  of  a  horse 
lost  in  the  service,  if  the  case  otherwise  comes  within  the  provisions 
of  said  act.  The  appeal  Avas  therefore  reopened,  and  the  claim  hav- 
ing been  found  to  come  within  the  requirements  of  law,  the  same  was 
allowed,  reversing  the  decision  of  the  Assistant  Comptroller  in  the 
same  case  in  18  Comp.  Dec.  47,  of  July  24,  1911. 

(Comp.  of  the  Treas.,  Feb.  19,  1913.) 


QUARTEHS:  Right  to,  while  stationed  at  the  home  port  of  a  transport  on 
which  he  performed  temporary  service. 

An  officer  of  the  Army  was  assigned  to  duty  in  the  Army  Trans- 
port Service  with  station  at  the  home  port  of  a  transport,  and  actu- 
ally took  station  at  such  port,  and  Avas  assigned  to  duty  as  transport 
quartermaster  for  a  particular  voj^age  involving  temporary  ab- 
sence from  his  station.  On  his  return  he  was  to  resume  duty  at 
the  home  port  unless  otherwise  ordered.  Held,  that  the  officer  came 
within  the  operation  of  that  part  of  paragraph  1325  of  the  Army 
Regulations  of  1910  which  reads: 

''An  officer  does  not  lose  his  right  to  quarters  or  commutation  at 
his  permanent  station  by  a  temporar}^  absence  on  duty." 

(19  Comp.  Dec,  94,  Aug.  19,  1912.) 


DIGEST   OF   OPINIONS  OF    THE   JUDGE   ADVOCATE   GENERAL.        109 

QUARTERS:  Right  of  veterinarians  to,  while  temporarily  absent  from  their 
stations, 

A  veterinarian,  United  States  Army,  was  ordered  to  proceed  in 
company  Avith  a  commissioned  officer  to  various  points,  as  iiiijilit 
be  necessary,  for  the  purpose  of  inspecting  horses  for  the  Army, 
upon  completion  of  which  duty  he  was  to  return  to  his  proper  sta- 
tion. He  was  absent  on  such  duty  from  March  2G  to  May  23,  1909, 
upon  which  lattei-  date  he  returned  to  his  station. 

The  act  of  February  2, 1901  (31  Stat.,  753),  provides  that  veterina- 
rians "shall  receive  the  pay  and  allowances  of  second  lieutenant, 
mounted,"  and  the  act  of  May  11,  1908  (35  Stat.,  113),  appropriates 
for  commutation  of  quarters  to  commissioned  officers  of  the  Army 
without  troops  at  stations  where  there  are  no  public  quarters. 

Ileld^  that  an  Army  veterinarian,  on  temporary  duty  without 
troops  at  stations  where  public  quarters  were  not  availal)le,  was  en- 
titled to  the  same  commutation  of  quarters  as  a  second  lieutenant  of 
the  Army  under  like  conditions;  and  held  further^  that  he  was  en- 
titled to  be  paid  said  commutation  from  the  same  appropriation  as 
that  from  which  commissioned  officers  are  paid  such  couimntation, 
reversing  on  this  proposition  15  Comp.  Dec,  822  and  18  id.,  937. 

(19  Comp.  Dec,  341,  Dec.  9,  1912.) 


TRAVEL  ALLOWANCES:   On  discharge;  computing  distance  for  the  pur- 
pose of  furnishing  transportation  and  subsistence. 

The  act  of  August  24,  1912  (37  Stat.,  576),  provides  for  the  fur- 
nishing to  a  soldier  on  discharge,  except  by  way  of  punishment  for 
an  ofi'ense,  transportation  in  kind  and  subsistence  from  jdace  of  dis- 
charge to  place  of  enlistment  or  to  such  place  "  within  the  con- 
tinental limits  of  the  United  States  as  he  may  select,  to  wdiich  the 
distance  is  no  greater  than  from  the  place  of  discharge  to  place  of 
enlistment."  The  act  does  not  except  sea  travel  in  computing  the 
distance  from  place  of  discharge  to  place  of  enlistment  for  the  pur- 
pose of  furnishing  transportation  in  kind  and  subsistence,  but  does 
specifically  except  such  travel  in  computing  said  distance  for  the 
purpose  of  paying  mileage  on  discharge  where  the  soldier  elects  to 
receive  mileage. 

Heidi  that  a  soldier  enlisting  in  the  Philippine  Islands  and  dis- 
charged in  the  United  States,  not  by  way  of  punishment  for  an 
oflFense,  may  be  furnished  transportation  in  kind  and  subsistence  to 
any  place  within  the  continental  limits  of  the  Ignited  States  which 
he  may  select,  such  distance  being  less  than  that  from  i)lace  of  dis- 
charge to  place  of  enlistment  computed  by  including  sea  travel. 

(Comp.  of  the  Treas.,  Feb.  28,  1913.) 


TRAVELING  EXPENSES:  Payment  of;  to  civilian  employee  on  termina- 
tion of  journey. 

A  clerk  was  transferred,  under  orders,  from  the  office  of  the  depot 
quartermaster,  Washington.  D.  C,  to  duty  with  the  clepot  (piarter- 
master  at  Omaha,  Nebr.,  at  an  increased  comi)eusation  eifective  on 


170       DIGEST   OF   OPIXIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

tlie  claie  when  he  should  assume  duty  at  Omaha.  He  arrived  at 
Omaha  at  11.15  p.  m.,  and  reported  for  duty  to  the  depot  quarter- 
master at  said  place  the  next  morning.  His  expenses  for  lodging 
on  the  night  of  his  arrival,  and  breakfast  the  next  morning,  amount- 
ing to  $1.75,  were  disallowed  by  the  Auditor  for  the  War  Department 
in  the  account  of  tlie  disbursing  officer  making  the  payment.  Held,, 
on  appeal  to  the  Comptroller,  that  the  clerk  having  been  ordered  to 
change  station  from  Washington  to  Omaha,  the  latter  became  his 
new  and  permanent  official  station;  that  his  travel  upon  official  busi- 
ness ceased  upon  his  arrival  at  his  new  station;  and  that  he  ceased 
to  be  entitled  to  lodging  and  subsistence  as  a  part  of  his  actual 
expenses  of  travel  upon  such  arrival.  The  auditor's  action  was, 
therefore,  affirmed. 

(Comp.  of  the  Treas.,  Feb.  27,  1913.) 


TRANSPORTATION:  Throug-h-party  rate. 

Transportation  was  furnished  for  50  men  from  Columbus,  Ohio, 
to  Fort  Sill,  Okla.,  on  a  single  ticket  issued  in  pursuance  of  a  trans- 
portation request.     A  notation  on  the  back  of  the  request  read: 

"  Settlement  at  special  rate  as  per  agreement  *  *  *  between 
the  quartermaster,  Columbus  Barracks,  Ohio,  and  the  Baltimore 
&.  Ohio  Southwestern  Railroad  Co."' 

Said  agreement  provided  for  the  transportation  of  50  men,  more 
or  less,  from  Columbus,  Ohio,  to  Fort  Sill,  Okla.,  at  a  rate  of  $21.71, 
first  class  net  per  capita,  unless  the  said  rate  should  subsequently 
be  found  to  be  in  excess  of  the  regular  tariff  rates  less  land-grant  or 
other  lawful  deductions  to  which  the  Government  was  entitled,  in 
which  case  the  lower  rate  should  govern.  The  legally  authorized 
rate  for  the  distance  under  consideration  available  to  the  general 
public  and  to  the  Government  was  $23.15,  chargeable  to  any  party 
of  50  persons  traveling  together  on  one  ticket  as  this  party  was 
traveling.  The  land-grant  deduction,  to  which  the  Government 
was  entitled,  reduced  this  rate  to  $19.79  for  each  man. 

HelcU  that  the  net  rate  available  to  the  Government,  computed  by 
taking  the  authorized  land-grant  from  the  regular  tariff  rate,  being 
less  than  the  specific  rate  named  in  the  special  contract,  such  net  rate 
is  the  one  required  both  by  law  and  by  the  contract,  and  settlement 
should  be  made  accordingly. 

(Comp.  of  the  Treas.,  Feb.  25,  1913.) 


DECISIONS  OF  THE  COURT  OF  CLAIMS. 

(Digests  prepared  in  the  office  of  the  Jiulare  Advocate  General.) 

CONTRACTS:  Liquidated  damages;  set-ofE  against  prior  overpayTnent. 

A  contract  was  entered  into  for  the  construction  of  a  vessel  for  the 
War  Department,  which  contained  a  provision  for  the  payment  of 
$50  per  day  as  liquidated  damages  for  every  day  of  delay  beyond 
the  contract  time  for  completion  of  the  vessel,  exclusive  of  Sundays 
and  legal  holidays.     At  the  request  of  the  contractor,  the   Quar- 


DIGEST   OF   OPIXIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       171 

termaster  General  of  the  Army  verbally  waived  the  time  limit,  ami 
afterwards  confirmed  the  verbal  waiver  by  letter.  The  contractor 
delayed  completion  of  the  ve&sel  for  9r»  days  after  the  time  fixed  by 
the  contract  exclusiAC  of  Sundays  and  k>gal  holidays,  but  payment 
was  made  in  full  without  reduction  for  such  delay.  Subsccjuently 
the  same  contractors  completed  another  ccmtract  for  the  construc- 
tion of  a  vessel  for  the  United  States,  and  in  makin<r  payment 
therefor  the  Government  ollicials  withheld  an  amoiuit  suilicient  to 
cover  the  liquidated  damages  arising  under  the  first  contract  at  the 
rate  specified  therein.  It  was  not  shown  that  the  Govei'nment  suf- 
fered any  actual  pecuniary  damage  by  the  delay  in  completing  the 
fii'st  contract. 

Held.,  that  the  waiver  of  the  time  for  the  completion  of  the  first 
contract  was  not  a  waiver  of  the  right  of  tlie  Government  to  claim 
liquidated  damages  for  such  delay,  the  Government  not  being  re- 
sponsible for  the  delay  and  the  waiver  not  fixing  any  new  date  from 
which  to  compute  the  li(juidated  damages:  and  held  furthei\  that 
the  amount  of  such  liquidated  damages  might  be  deducted  in  making 
settlement  for  the  work  done  under  the  last  contract.  Whcoi^sin  Cen- 
tral Railroad  Co.  v.  United  States  (164  U.  S.,  190,  2V2),  and  other 
cases  cited. 

{Maryland  Steel  Co.  v.  United  States,  Ct.  Cls.,  No.  31-281,  Dec.  -2, 

1912.) 


GOVERNMENT   AGENCIES:    Responsibility    of    an   officer   of    the   Marine 
Corps  for  post  exchange  funds  under  his  control. 

An  officer  of  the  Marine  Corps  was  duly  designated  as  post  ex- 
change disbursing  officer,  and  came  into  possession  of  moneys  in  said 
capacity  under  proper  orders  pursuant  to  Navy  Kognlations.  The 
Navy  Regulations  at  the  time  provided  for  the  establisiiment  of  po^t 
exchanges,  the  method  of  conducting  the  same  and  their  sources  of  in- 
come, the  manner  of  keeping  accounts,  etc.  A  board  of  officers  ap- 
pointed to  audit  the  post  exchange  officer's  accounts  reported  that  a 
shortage  existed,  but  that  in  their  opinion  the  same  '*  did  not  result 
from  any  carelessness,  neglect,  or  misappropriation"  on  the  pa  it  of 
such  officer.  The  findings  of  the  board  were  immediately  disapproved 
by  the  commanding  officer.  A  second  board,  convened  for  the  pur- 
pose of  investigating  the  alleged  theft  of  funds  from  the  post  ex- 
change officer,  reported  that  it  was  unable  to  obtain  e\i(lence  fixing 
the  guilt  upon  any  person  or  persons.  This  report  was  likewise  dis- 
approved by  the  commanding  officer  of  the  ]X).st.  Thereafter  a  court 
of  inquiry  was  convened  at  Washington,  D.  C,  for  the  purpoge  of  in- 
vestigating the  alleged  theft  of  funds  from  said  officer,  and  reported 
that  the  officer,  "as  custodian,  has  failed  to  show  satisfactordv  thiit 
the  money  was  taken  from  him  through  no  neglect  of  his  own,  and 
that  he  "  was  responsible  for  the  funds  of  the  post  exchange,  company 
fund,  commissary  fund,  and  bakery  fund,  to  the  amount  of  i?9..9.0S, 
for  which  he  has  failed  to  satisfactorily  account."  The  oHicer  ha\  mg 
died,  the  board  recommended  that  his  decedent  be  held  responsil)le 
and  the  amount  deducted  from  any  pay  that  might  be  found  to  be 
due  to  the  deceased  officer,  and  such  amount  refunded  to  said  funds. 
The  proceedings,  findings,  and  lecommendations  were  approved  by 
the  commanding  officer  of  the  Marine  Corps,  and  also  by  tlie  becre- 


172        DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

tary  of  the  Navy.  The  court  found  that  the  amount  stated  "  was  lost 
through  the  fault  or  negligence  of  plaintiff's  intestate"  (the  post  ex- 
change officer).  The  deduction  was  made  according  to  the  recom- 
mendations of  the  board,  and  the  administrator  of  the  deceased  officer 
brought  an  action  for  the  recovery  of  the  amount. 

Held,  that  under  the  regulations  of  the  Navy  Department  the  post 
exchange  was  not  a  voluntary  association,  but  an  institution  estab- 
lished by  the  Government  for  the  convenience  of  the  officers,  and 
more  particularly  for  the  discipline  of  the  enlisted  men,  and  the 
legulations  establishing  the  same  conflicted  wdth  no  hiAv ;  that  the 
funds  received  by  the  post  exchange  officer  in  this  case,  by  an  act  of 
the  United  States,  came  into  his  keeping,  not  as  a  private  individual, 
but  as  a  disbursing  agent  for  the  Government  and  for  the  use  and 
benefit  of  the  marines;  and  that,  inasmuch  as  it  uas  shoAvn  that  the 
officer  was  at  fault  and  did  not  properly  account  for  the  funds  which 
came  into  his  hands,  the  plaintiff  was  not  entitled  to  be  relieved  from 
the  deduction  made  from  the  officer's  pay. 

{Wooq^  adiainistratoT^  v.  United  States,  Ct.  Cls.,  No.  29805,  Jan. 
13,  1913.') 


BULLETIN   13. 

BuLLETiNi  WAR  depap.t:mkxt, 

No.  13.    J  Washington,  April  ,.\  1913. 

The  following  digest  of  opinions  of  tlie  Judge  Advocate  General 
of  the  Army  for  the  month  of  March,  11)1:3,  and  of  certain  decisions 
of  the  Comptroller  of  the  I'reasury,  and  of  an  opinion  of  the  Attorney 
General  is  published  for  the  information  of  the  service  in  t'eneral 
[2023920,  A.  G.  O.] 

By  order  of  the  Secretary  or  AVar: 

LEONARD   WOOD. 

Major  General,  Chief  of  Staff. 
Official  : 

GEO.   ANDREWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

APPROPRIATIONS:   Contingencies,  headquarters  of  military  departments; 
availability  for  brigade  and  Coast  Artillery  district  headquarters. 

The  Army  appropriation  act  of  March  24,  1912  (37  Stat.,  oTO), 
appropriates  as  follows: 

"Contingencies,  headquarters  of  military  departments:  For  con- 
tingent expenses  at  the  headquarters  of  the  several  military  divi- 
sions and  departments,  including  the  Staff  Corps  serving  thereat, 
*  *  *  to  be  allotted  by  the  Secretary  of  War,  and  to  be  expended 
in  the  discretion  of  the  several  military  division  and  department 
commanders,  $7,500." 

Under  recent  regidations  promulgated  in  General  Ordei*s,  No.  9, 
War  Department,  1913,  territorial  divisions  and  departments  were 
superseded  by  territorial  departments,  and  tactical  divisions  and 
brigades  were  organized. 

Held,  that  the  words  "headquarters  of  the  several  military  divi- 
sions and  departments "  could  not  be  construed  to  include  brigade 
and  artillery  district  headquai'ters,  and  that  said  appi'opriation  was 
therefore  not  available  for  allotment  to  brigade  or  artillery  district 
headquarters. 

(5-214,  J.  A.  G.,  Mar.  22,  1913,  and  52-241,  Mar.  25,  1913.) 


APPROPRIATIONS:  Incidental  expenses  of  holding  an  international  rifle- 
shooting'  competition. 

The  Army  appropriation  act  of  March  2,  1013  (Public,  No.  401, 
p.  9),  appropi-iates — 

"To  meet  expenses  incident  to  holding  an  international  rifle-shoot- 
ing competition  at  Camp  Perry,  Ohio,  in  cooperation  with  the  i'erry 

I7:i 


174       DIGEST    OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

Victory    Centennial    Celebration;  to  be   lield    in   September,    1013, 
*     *     *     $-25,000." 

On  submission  for  opinion  of  certain  questions  relating  to  the 
above  appropriation,  held.,  that,  as  it  was  the  common  practice  to 
offer  cash  prizes  and  medals  to  be  competed  for  at  events  of  this 
character,  expenditures  for  said  purposes  were  proper  incidental  ex- 
penses of  the  competition,  and  might  be  paid  from  the  appropriation 
therefor;  that  the  expenses  of  the  assistant  recorder  of  the  national 
board  for  promotion  of  rifle  practice  for  necessary  trips  between 
Washington  and  Camp  Perry  could  not  be  paid  from  said  appropria- 
tion, as  more  specific  provision  was  made  therefor  in  the  same  act 
(p.  20)  under  the  head  "National  trophy  and  medals  for  rifle  con- 
tests"; and  that  expenses  for  the  transportation,  subsistence,  and 
entertainment  of  visiting  foreign  teams  wdiile  in  the  United  States 
might  be  met  from  said  appropriation  as  incidental  expenses  thereof, 
in  view  of  the  international  character  of  the  competition  and  the 
evident  purpose  to  reciprocate  for  similar  favors  extended  to  teams 
from  the  United  States  visiting  like  competitions  abroad.  11  Comp. 
Dec,  344. 

(5-249.7,  J.  A.  G.,  Mar.  18,  1013.) 


BOISTDS:  For  the  return  of  property;  execution  of;  seals. 

A  bond  was  given  by  eighteen  members  of  the  executive  board  of 
an  organization  intended  to  secure  the  return  of  certain  tents  and 
cots  loaned  by  the  United  States.  Objection  was  made  that  the  per- 
sons executing  the  bond  had  not  affixed  their  seals.  It  appeared  that 
the  word  "  seal "  w^as  printed  after  each  of  the  first  four  signatures 
to  the  bond,  but  that  nothing  corresponding  to  a  seal  appeared  after 
any  of  the  other  signatures.  The  instrument  recited  that  it  was 
'•  given  under  our  hands  and  seals." 

Held,  that  in  view  of  the  recital  in  the  instrument  that  it  was  exe- 
cuted under  the  hands  and  seals  of  the  obligors,  the  persons  signing 
and  after  whose  names  no  seals  appeared  must  be  assumed  to  have 
adopted  the  seal  of  the  first  four  signing  the  instrument,  and  that  the 
printed  word  "seal"  was  a  sufficient  sealing  of  the  bond.  Rockwell 
V.  Capitol  Traction  Co.  (25  App.  Cases  D.  C,  98). 

(12-132,  J.  A.  a,  Mar.  26,  1913). 


CLERKS  AND  EMPLOYEES:   Classified  civil  service;  filing  and  service  of 
charges. 

Section  6  of  the  Post  Office  appropriation  act  of  August  24,  1912, 
(37  Stat.,  555),  provides: 

"  That  no  person  in  the  classified  civil  service  of  the  United  States 
shall  be  removed  therefrom  except  for  such  cause  as  will  promote  tlie 
efficiency  of  said  service  and  for  reasons  given  in  writing,  and  the 
person  whose  removal  is  sought  shall  have  notice  of  the  same  and  of 
any  charges  preferred  against  him  and  be  furnished  with  a  copy 
thereof,  and  also  be  allowed  a  reasonable  time  for  personalli^  answer- 
ing the  same  in  writing;  and  affidavits  in  support  thereof;  but  no 
examination  of  witnesses  nor  any  trial  or  hearing  shall  be  required 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       175 

except  in  the  discretion  of  the  officer  makiii":  the  removal,  and  copies 
of  charges,  notice  of  hearing,  answer,  reason  for  removal,  and  of  tlie 
order  of  removal,  shall  be  made  a  part  of  the  records  of  the  proper 
department  or  office,  as  shall  also  the  reasons  for  reduction  in  i-ank 
or  compensation;     *     *     *." 

.  Two  officers  in  the  classified  civil  service  were  charged  with  negli- 
gence in  connection  with  the  sinking  of  a  Government  vessel  at  the 
dock  by  reason  of  water  entering  a  porthole  which  had  been  left  open, 
and  it  was  proposed  to  take  disciplinary  action  against  tiiem.  It 
appeared  that  the  specific  acts  and  omissions  which  constituted  the 
negligence  charged  against  the  officers  were  stated  in  writing  and 
given  to  both  officers:  that  they  were  furnished  with  copies  of  the 
charges  and  were  allowed  a  reasonable  time  for  personally  answering 
the  same  in  writing,  which  they  did  in  full;  that  no  affidavits  were 
filed  by  the  Government  in  respect  to  the  charges,  the  facts  concern- 
ing the  sinking  of  the  vessel  having  been  taken  cognizance  of  by  the 
military  authorities  and  reported  upon  in  the  performance  of  their 
duties;  and  that  the  only  question  was  as  to  the  legal  inference  of 
negligence  to  be  drawn  from  the  facts  stated  and  admitted.  Subse- 
quently an  inspector,  by  order  of  the  Secretary  of  War.  made  the 
usual  'military  investigation,  of  which  the  two  officers  had  actual 
notice,  and  during  which  they  testified  before  the  inspector. 

Eeld^  that  the  investigation  by  the  inspector  was  not  a  trial,  as 
that  officer  was  not  a  tribunal,  and  that  the  requirements  of  said  sec- 
tion of  the  act  of  August  24,  191-2,  regarding  the  reduction  in  rank 
and  compensation  of  classified  employees  in  the  civil  service,  had 
been  fully  complied  with  in  said  cases:  held  furth-er,  that  the  negli- 
gence being  established,  the  proper  authority  might,  for  the  puri)ose 
of  guiding  his  discretion  in  determining  what  action  should  be  taken, 
inform  himself  of  the  general  efficiency  of  said  officers,  but  that  in 
case  of  discharge  general  inefficiency  would  not  become  the  real  and 
legal  reason  for  such  action. 

(16-210.  J.  A.  G.,  Mur.  12,  1913.) 


CONTRACTS:  Relief  against,  where  deliveries  were  discontinued  by  reason 

of  the  removal  of  troops. 

Contracts  were  entered  into  for  the  delivery  of  hay,  straw,  and 

other  forage  at  certain  posts  within  the  fiscal  year  1913,  from  time 

to  time  as"  ordered,  each  contract  containing  a  clause  reading  as 

follows : 

'•  If  during  the  period  of  this  contract  the  troops  or  garrison  be 
withdrawn  in  whole  or  in  part  from  the  post  or  station,  or  other 
radical  change  be  made  in  the  service  by  which  the  supplies  \vdl 
not  be  requii^d,  the  contract  shall  become  inoperative  accordingly. 

Troops  were  withdrawn  from  the  posts  indicated  for  concentration 
at  Galveston,  Tex.,  and  further  deliveries  under  the  contracts  were 
in  consequence  discontinued.  The  contract  price  for  the  deli vei-v  of 
the  forage  at  the  posts  contracted  for  was  greater  in  all  cases  than 
the  cost  of  obtaining  such  material  in  the  open  market  at  Galveston. 

Held,  that  the  Government,  bv  discontinuing  deliveries  under  the 
contracts,  had  onlv  exercised  an  indisputable  right  which  the  Gov- 
ernment officials  were  not  at  liberty  to  disregard,  and  that  nothing 
could  be  done  to  relie>e  the  contractors  from  the  operation  ot  the 


176       DIGEST  OF   OPINIONS  OF   THE   JUDGE   ADVOCATE   GENEEAL. 

plain  terms  of  their  contracts,  but  that  where  special  orders  had  been 
given  for  deliveries  and  the  contractors  had  begun  the  work  of  filling 
such  orders,  the  same  might  properly  be  completed,  although  the 
Government  might  not  have  immediate  use  for  the  forage  at  the 
places  of  delivery  and  might  be  compelled  to  ship  it  elsewhere  for  use. 
(76-760,  J.  a;  G.,  MarT  15,  1913.) 


DETACHED  SERVICE:   Details  to  the  Bureau  of  Insular  Affairs  from  the 
line  of  the  Army. 

The  Army  appropriation  act  of  March  2,  1913  (Public,  No.  401, 
p.  3),  contains  the  following  provision: 

'■''Prorided',  That  hereafter,  in  determining  the  eligibility,  under 
the  provisions  of  the  act  of  Congress  approved  August  Twenty- 
fourth,  nineteen  hundred  and  twelve,  of  troop,  battery,  or  company 
officers  for  detail  as  officers  of  the  various  staff  corps  and  depart- 
ments of  the  Army,  except  the  General  Staff  Corps,  service  actually 
performed  by  any  such  officer  with  troops  prior  to  December  fif- 
teenth, nineteen  hundred  and  twelve,  as  a  regimental,  battalion,  or 
squadron  staff  officer,  shall  be  deemed  to  have  been  duty  with  a  bat- 
tery, company,  or  troop:     *     *     *." 

Ileld^  that  the  detail  of  a  line  officer  of  compauA^  gi-ade  as  an  officer 
of  the  Bureau  of  Insular  Affairs  was  within  the  purview  of  the  de- 
tached service  provision  contained  in  the  Army  appropriation  act 
of  March  2,  1913. 

(6-121,  J.  A.  G.,  Mar.  6,  1913.) 


DETAILS  OF  OEFICERS:   Educational  institutions;  detail  of  more  than  one 
to  each  institution. 

On  submission  of  the  question  as  to  whether  or  not,  under  the  laws 
governing  the  detail  of  officers  of  the  Army  for  duty  in  connection 
with  military  instruction  at  educational  institutions,  more  than  one 
officer  may  be  detailed  for  such  duty  at  any  one  institution, 

Tleld^  that  only  one  officer  on  the  active  list,  or  one  retired  officer 
entitled  to  active  pay  subject  to  the  limitation  imposed  bv  the  act  of 
March  3,  1909  (35  Stat.,  758),  might  be  detailed  for  such  duty  at  any 
one  institution ;  but  that,  in  addition  to  one  officer  on  the  active  list, 
or  one  retired  officer  entitled  to,  full  pay  subject  to  the  limitations 
mentioned,  detailed  for  such  duty  at  an  institution,  a  retired  officer, 
who  would  be  entitled  to  no  compensation  from  the  Government 
other  than  his  retired  pay,  might  be  detailed  for  duty  at  the  institu- 
tion, if  in  the  judgment  of  the  President  the  additional  detail  was 
necessary. 

(56-3i4.  J.  A.  G.,  Mar.  18,  1913.) 


DISCIPLHSTE:   Donation  of  $5  to  enlisted  men  dishonorably  discharged  from 
the  service. 

The  Army  appropriation  act  of  August  24,  1912  (37  Stat,  580), 
appropriates — 

"  For  a  donation  of  five  dollars  to  each  dishonorably  discharged 
prisoner  upon  his  release  from  confinement,  under  court-martial 
sentence  involving  dishonorable  discharge." 


DIGEST  or   OPINIONS   OF    THE   JUDGE   ADVOCATE   GEXERAL,        177 

The  same  provision  has  been  made  in  Army  appropriation  a.  i.-, 
for  many  years  past.  Two  soldiers  of  the  United  States  Army  were 
tried  by  court-martial  and  each  sentenced — 

"  To  be  dishonorably  discharged  the  service  of  the  United  States, 
forfeiting  all  pay  and  allowances  due  and  to  be  confined  at  hard 
labor  at  such  place  as  the  reviewing  authority  may  direct  for  ten 
years." 

The  sentences  w^ere  approved,  except  that  the  punishment  l)y  con- 
finement was  remitted. 

Held^  that  the  sentence  of  a  court-martial  was  not  complete  until 
acted  upon  by  the  reviewing  authority,  and  that  the  sentence  in 
these  cases  when  so  acted  upon  amounted  merely  to  dishonorable 
discharge  without  involving  any  term  of  confinement ;  but.  lu;ld 
further^  that  payment  of  the  $5  provided  for  in  said  appropriation 
act  could  be  paid  to  the  soldiers  in  the  cases  mentioned,  although  no 
term  of  confinement  was  involved  in  the  sentences,  if  they  had  been 
confined  as  a  result  of  the  charges  brought  against  them  and  were 
to  be  released  from  such  confinement  on  discharge.  C.  2925,  Feb.  9, 
1897 ;  Jan.  4,  1912 ;  decision  of  the  Secretary  of  War,  par.  4,  circ. 
No.  4,  A.  G.  O.,  1897. 

(30-824.1  J.  A.  G.,  Mar.  11,  1913.) 


DISCIPLINE:   Power  to  appoint  summary  courts. 

The  first  section  of  the  summary  court  act  of  June  18,  1898  (30 
Stat.,  483),  empowers  "  the  commanding  officer  of  each  garrison,  fort, 
or  other  place,  regiment  or  corps,  detached  battalion,  or  company, 
or  other  detachment  in  the  Army,  *  *  *  to  appoint  for  such 
place  or  command,  or  in  his  discretion  for  each  battalion  thereof,  a 
summary  court  to  consist  of  one  officer  *  *  *  "  for  the  trial  of 
enlisted  men  for  offenses  not  capital,  and  provides  further  that 
"  such  summary  court  may  be  appointed  *  *  *  by  superior  au- 
thority when  by  him  deemed  desirable." 

The  Second  Division  was  concentrated  in  the  vicinity  of  Texas 
City  and  Galveston,  Tex.,  division  headquarters  and  part  of  i\\^  divi- 
sion being  encamped  near  the  former,  and  the  remainder  of  the 
division  near  the  latter  place.  A  question  was  presented  as  to  the 
power  to  appoint  summary  courts  for  the  trial  of  cases  arising  within 
the  division  but  outside  of  regiments  belonging  thereto. 

Held,  that  the  summary  court  act  of  June  18,  1898,  authorized  the 
commanding  officer  of  a  {a)  garrison,  fort,  or  other  place,  (&)  regi- 
ment or  corps,  detached  battalion,  or  company,  or  other  detachment 
in  the  Army,  to  appoint  for  such  place  or  command,  or.  in  his  dis- 
cretion, for  each  battalion  thereof,  a  summary  court  for  the  trial  <)f 
enlisted  men  for  offenses  not  capital;  that  the  warrant  of  authority 
was  based  upon  command  and  was  expressed  coordinately :  Fii-st. 
with  reference  to  the  territory  controlled  by  the  appointing  offi.nu-. 
and,  second,  with  reference  to  the  force  thus  controlled;  and  that  tiic 
warrant  of  authority  to  the  territorial  commander  was  not  in  terms 
exclusive  of  the  authority  of  organization  or  detachment  command- 
ers, nor  was  the  w^arrant  of  authority  to  organization  or  dctachuKMit 
commanders  in  terms  exclusive  of  the  authority  of  the  territorial 
commander. 

93668°— 17 12 


178        DIGEST   OF   OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

Held  further^  that  in  so  far  as  the  regiment  to  which  a  battalion 
normally  belongs  was  concerned,  the  latter  became  "  detached," 
within  the  meaning  of  the  summary  court  act,  when  removed  from 
the  immediate  command  of  the  regimental  commander,  and  remained 
"•  detached,"  so  far  as  the  administration  of  justice  through  summary 
courts  was  concerned,  until  it  again  came  under  the  disciplinary 
control  of  the  regimental  commander,  even  though  while  so  "  de- 
tached" from  the  regiment  such  battalion  came  under  the  general 
command  and  control  of  an  officer  commanding  a  garrison,  fort,  or 
other  place. 

Held  furtheVy  that  a  battalion  or  squadron  of  Infantry,  Field 
Artillery,  or  Cavalry  was  "  detached,"  within  the  meaning  of  the 
summary  court  act,  when  such  unit  was  isolated  or  removed  from 
the  immediate  disciplinary  control  of  the  commander  of  the  regi- 
ment of  which  it  formed  a  part;  that  a  battalion  of  engineers  or  a 
company  of  engineer.  Coast  Artillery,  Signal  Corps,  or  sanitary 
troops  was  "  detached  "  in  the  same  sense  when  isolated  or  removed 
from  the  immediate  dicsiplinary  control  of  a  superior  of  the  same 
branch  of  the  service;  and  that  within  the  meaning  of  the  same  act 
any  body  of  troops  was  a  "  detachment  in  the  Army  "  when  desig- 
nated, pointed  out,  or  separated  from  other  troops  in  such  manner  as 
to  make  its  commander  primarily  the  one  to  be  looked  to  by  superior 
authority  as  the  officer  responsible  for  the  administration  of  the  dis- 
cipline of  the  enlisted  men  composing  the  same. 

Held  further^  that  the  commanding  officers  of  such  units  as  an 
engineer  battalion,  signal  corps  company,  field  hospital,  ambuljince 
company,  or  field  bakery,  belonging  to  the  Second  Division  concen- 
trated in  Texas,  if  their  respective  commands  were  independent  ex- 
cept in  so  far  as  they  constituted  parts  of  the  division,  and  if  their 
commanders  were  responsible  directly  to  the  division  commander  for 
the  maintenance  of  discipline  in  those  commands,  were  competent  to 
appoint  summary  courts  for  the  same,  subject  to  the  right  of  the 
division  commander  to  appoint  summary  courts  for  all  subordinate 
organizations  and  detachments  under  his  command,  if  by  him  deemed 
desirable,  and  subject  also  to  the  right  of  the  detachment  Commander 
at  Galveston  to  do  likewise  in  respect  of  the  subordinate  organiza- 
tions and  detachments  under  his  command. 

Held,  fwtlier^  that  enlisted  men  of  the  Hospital  or  Quartermaster 
Corps  on  duty  with  the  Second  Division,  who  were  not  organized 
into  units  but  were  attached  to  a  regiment  or  other  unit  the  com- 
manding officer  of  which  was  competent  to  appoint  a  summary  court 
for  the  same,  constituted  part  of  the  command  of  the  officer  com- 
manding the  organization  to  which  they  were  attached  and  were 
subject  to  trial  by  a  summary  court  appointed  by  said  officer. 

('80-730,  J.  A.  G.,  Mar.  11,  1913.) 

The  Mounted  Service  School  at  Fort  Eiley,  Kans.,  includes  a  school 
for  field  officers,  one  for  company  officers,  one  for  farriers  and  horse- 
shoers,  and  one  for  bakers  and  cooks.  The  personnel  of  the  school  con- 
sists of  the  commandant,  the  school  staff,  the  mounted-service  school 
detachment,  and  the  officers  and  men  detailed  for  the  course  of  in- 
struction in  the  several  schools,  the  school  staff  consisting  of  all 
officers,  not  students,  on  duty  with  the  school.  The  administration 
of  the  school  is  intrusted  to  the  commandant,  the  school  being  gov- 
erned by  the  rules  of  discipline  prescribed  for  military  posts  and  by 


DIGEST    OF    OPI^^rONS    OF    THE    JUDGE    ADVOCATE    GENERAL.        179 

its  own  special  regulations.  The  military  personnel  under  the  gen- 
eral command  and  control  of  the  commanding  oflicer  ol"  the  i)ost  of 
Fort  Kile3%  Kans.,  includes  the  personnel  of  the  Mounted  S(M-vife 
School. 

Held,  that  the  commandant  of  the  Mounted  Service  Sciiool  at  Fort 
Riiey,  Kans.,  was  the  conmiander  primarily  to  be  l(M)ked  to  by 
superior  authority  as  the  oflicer  responsible  for  the  administration 
of  the  discipline  of  the  enlisted  men  connected  with  said  school; 
that  in  the  sense  of  the  summary  court  act  the  enlisted  men  undei-  the 
command  and  control  of  the  commandant  of  said  schcxjl  constituted 
a  "detachment  in  the  Army";  and  that  the  commandant  was  com- 
petent to  appoint  a  summary  court  for  the  trial  of  enlisted  men  be- 
longing to  his  command,  subject  to  the  rigl>t  of  the  commanding 
oflicer  of  the  post  of  Fort  Riley  to  appoint  such  court  when  by  liim 
deemed  desirable. 

(30-730,  J.  A.  G.,  Mar.  13,  1913.) 


DISCIPLINE:   Remission  of  punishment;  reduction  in  files  and  subsequent 
promotions. 

An  officer  of  the  Army  was  tried  by  a  general  court  and  sentenced 
"  to  be  reprimanded  by  the  reviewing  authority  and  be  reduced  in 
military  ran,k  ten  files  in  the  lineal  list  of  second  lieutenants  of 
Artillery." 

The  sentence  was  approved,  the  reprimand  administered,  and  the 
officer  reduced  in  files  according  to  the  sentence.  The  officer  was  sul)- 
seqiiently  promoted  to  captain  and  the  ten  officers  who  gained  one 
file  each  by  reason  of  the  sentence  of  the  court  had  also  been  pro- 
moted. Application  was  made  for  the  remission  of  the  sentence 
reducing  the  officer  in  lineal  rank. 

Ileld^  that  the  promotion  of  the  officer  suffering  a  reduction  in  files 
and  the  promotion  of  the  ten  oflUcers  benefiting  in  lineal  rank  by  such 
reduction  operated  to  make  the  punishment  no  longer  a  continuous 
one  in  the  sense  that  it  could  be  reached  by  the  power  of  remission 
or  by  the  power  of  pardon ;  and  that  the  case  had  passed  })eyond  the 
power  of  the  reviewing  authority  to  remit  the  punishment. 

(68-111.1.  J.  A.  G.,  Mar.  26,  1913.) 


EIGHT  HOUR  LAW:   Work  upon  two  contracts,  both  within  the  operation 
of  the  law. 

The  following  question  was  submitted  for  decision  rclati\c  to  tlie 
proper  construction  to  be  placed  upon  the  eight-hour  l:nv  of  June  ID, 
1912  (37  Stat.,  137)  : 

"Can  a  contractor  work  an  employee  eight  hours  in  a  calenchir 
day  upon  one  contract  coming  within  the  provisions  of  the  eight - 
hour  law^  and  then  work  the  same  mechanic  or  employee  upon  another 
contract  coming  within  the  provisions  of  the  law  the  same  calendar 
day,  whether  or  no  the  second  contract  covers  a  like  or  diff'erent 
material,  and  whether  or  no  the  second  contract  be  from  one  dei)ait- 
ment  of  the  Government  or  another  ? " 

The  Attorney  General,  in  an  opinion  dated  October  3,  1912  (29 
Opin.,  534) ,  held  that  "  the  eight-hour  workday  restriction  of  the  act 


180        DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

of  June  19,  1912,  known  as  the  eight-hour  law,  applies  only  to  work 
contemplated  by  the  contract,"  and  that,  clearly,  no  penalty  under 
authority  of  the  act  could  be  imposed  if  a  laborer  or  mechanic 
should  be  required  or  permitted  to  labor  more  than  eight  hours  a  day 
upon  some  other  Avork  than  that  contemplated  by  the  contract. 

Held^  that  the  opinion  of  the  Attorney  General  could  not  be  ex- 
tended so  as  to  cover  the  case  of  a  laborer  or  mechanic  working  more 
than  eight  hours  a  day  upon  two  separate  contracts,  both  coming 
v.'ithin  the  restrictions  of  the  law,  no  matter  whether  they  cover  like 
or  different  materials,  or  whether  made  by  one  department  of  the 
Government  or  by  two.  The  question  submitted  was,  therefore, 
answered  in  the  negative. 

(32-300,  J.  A.  G.,  Mar.  5,  1913.) 


MILITARY  BESERVATION:   Use  of  portion  of  reservation  by  the  Organ- 
ized Militia  of  Idaho. 

The  adjutant  general  of  the  State  of  Idaho  requested  that  a  certain 
portion  of  a  United  States  military  reservation  in  said  State  be 
either  set  aside  for  military  purposes  for  the  militia  of  said  State  or 
that  said  militia  be  granted  permission  to  use  such  portion  of  the 
reservation  for  such  purpose.  It  appeared  that  a  certain  portion  of 
the  reservation  had  been  designated  by  the  department  as  a  mobiliza- 
tion camp ;  that  there  were  no  other  suitable  grounds  in  the  vicinity 
that  could  be  obtained  for  the  State  militia  encampment;  and  that  in 
using  the  reservation  in  past  years  the  State  had  expended  a  con- 
siderable amount  in  repairing  the  target  range.  Advised^  that  in 
view  of  the  fact  that  the  reservation  was  not  being  used  for  military 
purposes,  and  that  the  use  of  the  portion  thereof  for  the  purpose 
outlined  would  be  of  advantage  to  the  United  States,  it  would  be 
proper  to  grant  a  revocable  license  to  the  State  for  the  purposes 
stated,  with  the  condition  that  the  buildings  and  other  property  of 
the  United  States  be  kept  in  a  thorough  state  of  repair  and  returned 
to  the  Government  in  as  good  condition  as  when  received. 

(80-816.1,  J.  A.  G.,  Mar.  5,  1913.) 


MILITIA:  Reserves;  payment,  from  Federal  appropriations,  for  attendance 
at  maneuvers  and  camps  of  instruction. 

X^pon  submission  of  the  following  questions  concerning  reserves 
of  the  Organized  Militia,  viz: 

''(«)  Where  the  law  of  a  State  provides  for  such  reserves  and 
authorizes  their  attendance  at  annual  encampments  or  maneuvers, 
for  the  purpose  of  filling  organizations  to  the  prescribed  strength, 
would  officers  and  men  of  the  reserve  be  entitled  to  active  pay  while 
on  said  duty? 

"(5)  Would  officers  and  men  of  the  reserve  be  entitled  to  pay  if 
ordered  to  encampments,  maneuvers,  etc.,  for  active  duty  and  not 
attached  to  any  organization,  but  form  separate  companies,  bat- 
talions, etc.,  organized  as  prescribed  for  the  active  militia  under  the 
militia  law  ?  " 


DIGEST   OE   OPINIONS  OF    THE    JUDGE   ADVOCATE   GENERAL.        181 

Held,  that  the  portion  of  the  peniuuient  annual  appropriation  for 
the  support  of  the  militia  whicli  was  available  for  and  devoted  to 
paying  the  militia  for  attendanee  at  maneiiwers  and  camps  of  in- 
struction was  payable  only  to  the  regularly  enlisted,  organized,  and 
uniformed  active  militia;  that  militia  reservists,  even  though  under 
State  legislation  they  were  subject  to  orders  to  attend  annual  en- 
campments and  maneuvers,  or  were  authorized  to  attend  such  en- 
campments and  maneuvers  at  the  option  of  the  individual  concerneil, 
did  not  constitute  part  of  the  active  militia  within  the  meaning  of  the 
Federal  legislation  making  provision  for  paying  the  militia  tor  par- 
ticipation in  maneuvers  and  camps  of  instruction  ;  and  tliat,  therefore, 
the  questions  submitted  should  be  answered  in  the  negative. 

(58-650,  J.  A.  G.,  Mar.  25,  1913.) 


NATIONAL  CEMETERIES:  Advertisements  offering  rewards  for  the  arrest 
of  persons  defacing  monuments. 

The  appropriation  for  the  Gettysburg  National  Park  contained  in 
the  act  of  August  24,  1912  (37  Stat.,  442),  covers  the  expense  of 
'"  marking  the  lines  of  battle  with  tablets  and  guns,  *  *  * ;  pre- 
serving the  features  of  the  battle  field  and  monuments  thereon; 
*     *     *      and  all  other  expenses  incidental  to  the  foregoing." 

Upon  the  question  of  whether  a  reward  of  $100  could  legally  be 
oliered  and  paid  for  information  leading  to  the  arrest  of  persons  who 
had  defaced  certain  of  the  monuments  on  said  battle  field,  Held,  that 
the  appropriation  in  question  was  broad  enough  to  include  provision 
for  all  reasonable  and  proper  means  for  the  protecticm  and  preserva- 
tion of  the  monuments  on  the  battle  field ;  that  tlie  payment  of  a 
reward  for  information  leading  to  the  arrest  of  persons  who  had 
defaced  the  monuments  was  a  reasonable  and  proper  means  of  se- 
curing such  protection;  and  that  there  was  no  objection  to  the  ap- 
proval of  a  request  to  insert  advertisements  in  the  newspapers 
offering  to  pay  a  stipulated  reward  for  such  information. 

(80-015,  J.  A.  G.,  Mar.  7,  1913.) 


PAY  AND  ALLOWANCES:   Forage,  use  of,  issued  for  authorized  mounts  in 
maintaining  mounts  not  authorized. 

It  was  desired  to  know  whether  an  officer  having  two  authorized 
mounts  and,  in  addition,  one  young  undersized  colt  could  use  the 
forage  issued  for  his  authorized  mounts  in  maintaining  all  three  of 
his  horses,  the  amount  issued  being  amply  sufficient  for  that  pur- 
pose. 

HeM^  that  forage  issued  for  the  maintenance  of  the  authorized 
number  of  horses  of  an  officer  was  not  to  be  taken  as  an  emoliunent 
out  of  which  he  might  make  a  saving  or  a  profit,  and  that  forage 
issued  and  not  use  in  the  maintenance  of  his  authorized  mounts 
should  be  accounted  for  as  public  property,  and  could  not  be  used 
in  maintaining  horses  not  required  to  be  kept  by  him  in  the  public 
S6rvic6 

(72-350,  J.  A.  G.,  Mar.  12,  1913.) 


182   DIGEST  OF    OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

PUBLIC  PROPERTY:   Sale  of  personal  property  of  the  United  States  to  an 
officer  of  the  Navy. 

The  Secretary  of  the  Navy  requested  that  an  officer  of  the  Navy 
on  the  retired  list  be  permitted  to  purchase  certain  articles  of 
clothing,  equipment  and  material  from  the  War  Department. 

Held,  that  the  only  authority  for  the  sale  by  the  Quartermaster 
Corps  of  the  articles  which  the  said  officer  desired  was  contained  in 
section  1144,  Revised  Statutes,  which  authorized  the  procurement  and 
sale  by  officers  of  the  Subsistence  Department  of  the  Army  to  officers 
and  enlisted  men,  of  certain  articles  designated  from  time  to  time  by 
the  Inspector  General,  which  authority  was  further  recognized  by 
sections  3618  and  3692,  Revised  Statutes;  that  said  authority  ex- 
tended only  to  the  sale  of  said  articles  to  officers  and  enlisted  men 
of  the  Army  and  did  not  embrace  authority  to  make  sales  to  others ; 
and  that  therefore  there  was  no  legal  authority  for  granting  the 
request  of  the  Secretary  of  the  Navy. 

(80-135,  J.  A.  G.,  Mar.  19,  1913.) 


RIVERS  AND  HARBORS:   Permission  to  build  wharf  and  trestle  approach 
thereto  in  Alaska. 

A  certain  company  was  given  permission  to  build  a  wharf  and 
trestle  approach  thereto  on  Controller  Bay,  Alaska,  upon  condition 
that  the  permission  should  be  inoperative  if  not  availed  of  by  De- 
cember 31,  1910.  The  time  limit  was  subsequently  extended  to 
December  31,  1912,  but  the  settlement  of  the  status  of  certain  coal 
lands  which  were  to  be  served  by  the  railway  of  which  the  wharf  and 
trestle  were  to  be  the  terminal,  was  delayed,  which  likewise  delayed 
the  work  upon  the  wharf  and  trestle,  and  a  further  extension  was 
therefore  desired.  The  previous  extension  was  granted  under  section 
10  of  the  river  and  harbor  act  of  March  3,  1899  (30  Stat..  1151). 
The  act  of  May  14,  1898  (30  Stat.,  409),  for  "extending  the  home- 
stead laws  and'  providing  for  right  of  way  for  railroads  in  the  Dis- 
trict of  Alaska,"  provides  that — 

"  When  such  railway  shall  connect  with  any  navigable  stream  or 
tide  water  such  company  shall  have  power  to  construct  and  maintain 
necessary  piers  and  wharves  for  connection  with  water  transporta- 
tion, subject  to  the  supervision  of  the  Secretary  of  the  Treasury." 

Held,  that  notwithstanding  the  provisions  of  the  latter  act,  the 
Secretary  of  War  still  had  jurisdiction,  under  section  10  of  the  river 
and  harbor  act  of  March  3,  1899,  over  the  erection  of  wharves  in 
Alaska  so  far  as  respects  their  interference  with  navigation,  although 
the  Secretary  of  the  Treasury  might,  under  said  act  of  May  14,  1898, 
have  supervision  over  the  matter  in  other  respects. 

(62-352,  J.  A.  G.,  Mar.  6,  1913.) 


TRANSPORTATION:   Furnishing  accommodations  on  Army  transports  to 
fanailies  of  officers  and  others  entitled  to  transportation  thereon. 

The  act  of  March  2,  1907  (34  Stat.,  1170),  reads  in  part  as  follows: 

"When,  in  the  opinion  of  the  Secretary  of  War,  accommodations 

are  available,  transpoitation  may  be  provided  for  the  officers,  en- 


DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.        183 

listed  men.  employees,  and  supplies  of  the  Navy,  the  Marine  L<)i|;-, 
*  *  *  land]  officers  of  the  War  Department  *  *  *^  while 
traveling  on  official  business,  and  without  expense  to  the  United 
States,  for  the  families  of  those  persons  herein  authorized  to  he 
transported     *     *     *." 

The  Secretary  of  the  Navy  requested  transportation  on  a  United 
States  Army  transport  for  the  father-in-law,  mother  in-law,  and 
sister-in-law  of  a  chief  electrician  in  the  Navy  from  San  Franc" 
Cal.,  to  Honolulu,  Hawaii.  It  appeared  that  the  wife  of  said  ( ...  . 
electrician  had  died,  and  that  he  and  his  two  minor  chihlren  h:id 
made  their  permanent  home  with  said  relatives. 

Held,  that  while  the  law  did  not  specify  who  shoukl  consiiiuie  ihe 
family  of  an  officer  or  enlisted  man  who  might  be  furnished  trans- 
portation on  an  Army  transport,  or  how  closely  related  to  the  officer 
or  enlisted  man  they  must  be  in  order  to  constitute  such  family,  the 
pers^^ns  for  whom  it  was  proposed  to  furnish  transportation  having 
been  attached  in  their  family  relations  to  the  chief  electrician  might 
be  considered  as  members  of  his  family,  and  that  transportation  on 
an  Army  transport  might  be  furnished  them,  if  they  were  removing 
to  the  station  of  the  chief  electrician  and  to  a  home  such  as  they 
had  occupied  with  him  before  making  the  change,  and  were  not 
making  the  trip  merely  as  a  visit. 

(94-110,  J,  A.  G.,  Mar.  11,  1913.) 

The  question  having  been  submitted  as  to  whether,  under  the  act 
of  March  2,  1907  (34  Stat,  1170),  a  member  of  an  officer's  family 
who  would  be  allowed  to  accompany  him  when  traveling  on  official 
business  would  be  permitted  to  join  him  by  a  later  transport  than 
the  one  upon  which  ho  proceeded  to  his  station,  held,  that,  consider- 
ing the  fact  that  the  order  under  which  an  officer  changes  his  station 
often  required  him  to  leave  on  such  short  notice  as  not  to  permit 
him  to  take  his  family  with  him,  a  regular  member  of  such  ollicer's 
family  who  would  have  been  allowed  under  the  provisions  of  said 
act  to  accompany  him  might  be  provided,  at  a  later  date,  with  trsins- 
portation  on  an  Army  transport  for  the  purpose  of  joining  the  officer 
at  his  new  station. 

(94-110,  J.  A.  G.,  Mar.  14,  1913.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  Office  of  the  Judge  Advocate  General.) 

CONTRACTS:  Time  of  completion;  delay  in  approving. 

A  contract  dated  June  29,  1911,  was  entered  into  for  tlie  instiilhi- 
tion  of  certain  electrical  apparatus  at  an  Army  post,  which  pi-oxided 
that  the  work  in  said  contract — 

"shall  commence  on  or  before  the  30th  day  of  .lunc  11>11,  and  shall 
be  carried  on  with  reasonable  dispatch  and  be  completed  on  oi-  l)ef(»re 
the  13th  day  of  November,  1911."  ,  •    .  . 

It  was  fuither  provided  that  such  contract  was  made  '  subject  to 
the  approval  of  the  Quartermaster  General,  U.  S.  Army,"  bnt  it  wa.s 
not  actually  approved  by  that  officer  until  September   '1    1''^      liy 


184       DIGEST  OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

supplemental  agreement  the  time  limit  for  the  completion  of  the  con- 
tract was  extended  to  December  13,  1911.  Avith  the  proviso  that  any 
excess  in  the  cost  of  inspection,  or  other  additional  expenses  or  dam- 
ages to  the  United  States  over  what  would  have  been  incurred  had 
the  work  been  completed  by  the  date  originally  fixed  for  its  comple- 
tion, should  be  charged  to  the  contractor.  The  work  was  actually 
completed  December  13,  1911,  and  final  payment  made.  The  auditor 
disallowed  in  the  accounts  of  the  disbursing  officer  making  the  pay- 
ment an  amount  equal  to  the  saving  in  operation  of  the  new  plant 
over  the  old  from  November  13  to  December  13,  1911,  upon  the 
theory  that  the  contractor  was  obligated  to  complete  the  work  by  the 
former  date,  and  that  his  failure  to  do  so  resulted  in  the  damage 
stated. 

Ileld^  that  the  contract  did  not  become  binding  until  September  21, 
1911,  when  it  was  approved  by  the  Quartermaster  General,  and  that 
the  contractor  was  not  therefore  bound  to  complete  the  work  by  the 
date  stated  in  the  contract,  but  only  to' complete  the  same  within  a 
reasonable  time  after  such  approval.  Ileld^  further,  that  the  sup- 
plemental contract  operated  to  fix  the  date  by  which  the  work  should 
be  completed,  which  date  took  the  place  of  the  reasonable  time  for 
completion  to  ^hich  the  contractor  would  otherwise  have  been  en- 
titled, and  that  the  contractor  having  completed  the  work  within  the 
time  thus  fixed  was  not  in  default  and  was  not  liable  for  damages 
for  not  completing  the  work  by  the  time  originally  fixed  in  the  con- 
tract. 

(Comp.  of  the  Treas.,  Mar.  26,  1913.) 


MILITIA:   Pay.  transportation,   and  subsistence  of.   while  attending"  joint 
encampments  and  maneuvers  with,  the  Regular  Army. 

Section  15  of  the  act  of  January  21.  1903  (32  Stat..  777),  as 
amended  by  the  act  of  April  21,  1910'  (36  Stat.,  329),  provides  that 

"  The  Secretary  of  War  is  authorized  to  provide  for  participation 
by  any  part  of  the  Organized  Militia  of  any  State,  Territory,  or  the 
District  of  Columbia,  on  the  request  of  the  governor  of  a  State  or 
Territory,  or  the  commanding-general  of  the  militia  of  the  District 
of  Columbia,  in  the  encampments,  maneuvers,  and  field  instruction  of 
any  part  of  the  Kegular  Army,  at  or  near  any  military  post  or  camp 
or  lake  or  sea-coast  defenses  of  the  United  States.  In  such  case  the 
Organized  Militia  so  participating  shall  receive  the  same  pay,  sub- 
sistence, and  transportation  as  is  provided  by  law  for  the  oificers 
and  men  of  the  Regular  Army,     *     *     *." 

Said  section  further  provides- for  such  payment  to  be  made  out  of 
the  annual  appropriation  authorized  by  section  1661,  Revised  Stat- 
utes, as  amended.  The  regulations  of  the  Organized  Militia  pub- 
lished by  authority  of  the  Secretary  of  War  provide  that  in  order 
that  members  of  a  militia  organization  attending  a  joint  encampment 
or  maneuver  may  receive  Federal  pay,  65  per  cent  of  the  minimum 
strength  of  the  organization  must  be  present,  but  that  transfers  of 
members  may  be  made  from  one  organization  to  another  in  order  to 
bring  one  or  both  of  such  organizations  within  such  standard.  Said 
regulations  further  provide  that  in  order  to  participate  in  Federal 
pay  the  members  of  the  Organized  Militia  attending  such  encamp- 


DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       185 

ment  or  maneuver  must  have  been  enlisted  foi-  at  least  three  months 
prioi-  thereto,  or  have  had  an  equivalent  service  in  the  Army,  in  the 
Marine  Corps,  or  in  the  Organized  Militia,  No  provision  was  made 
in  the  reguhitions  for  depriving  members  of  the  Organized  Militia 
from  receiving  transportation  and  subsistence  in  connection  with  said 
encampments  or  maneuvers  in  case  they  did  not  come  within  the 
requirements  for  the  receipt  of  Federal  pay. 

A  disallowance  had  been  made  in  the  accoimts  of  a  disbursing 
officer  on  account  of  overpayment  for  subsistence  for  militia  attend- 
ing the  joint  encampment  at  Fort  Riley,  Kans.,  on  the  ground  that 
by  actual  count,  as  shown  by  the  Federal  pay  rolls,  the  cost  of  the 
number  of  rations  for  the  men  particij^ating  in  said  encampment  esti- 
mated at  25  cents  per  ration  aggregated  less  than  the  amount  i)aid 
for  such  subsistence.  This  disalloAvance  had  been  affirmed  l)y  the 
Comptroller  by  certificate  of  difference  only,  and  a  reconsideration 
was  asked  for  by  the  Secretary  of  War. 

Held.,  that  under  the  circumstances  payment  for  transportation 
and  subsistence  of  men  belonging  to  the  Organized  Militia  attending 
joint  encampments  or  maneuvers  with  the  Eegular  Army  under  au- 
thority of  the  Secretary  of  War  might  be  made,  although  such  men 
might  not  come  within  the  requirements  which  would  entitle  them  to 
participate  in  Federal  pay,  and  resort  to  other  evidence  than  the 
pay  rolls  might  be  had  in  order  to  ascertain  who  were  entitled  to 
such  transportation  and  subsistence.  The  case  Avas  therefore  re- 
opened in  order  to  allow  the  disbursing  officer  to  submit  evidence 
showing  the  number  of  men  for  wdiom  transportation  and  subsistence 
were  paid  and  who  participated  in  the  joint  encampment. 

(Comp.  of  the  Treas.,  Feb.  19,  1913.) 


PAY    ALLOWANCE:   Forage   allowance   to   military    attaches   not   owning 
their  own  mounts. 

Section  1272  of  the  Revised  Statutes  provides  that — 

"  Forage  shall  be  allowed  to  officers  only  for  horses  authorized  by 
law,  and  actually  kept  by  them  in  service  wh^n  on  duty  and  at  the 
place  wdiere  thev  are  on  duty." 

Section  8,  oif  the  act  of  June  18,  1878  (20  Stat.,  150),  provides 
that— 

"  Forage  in  kind  may  be  furnished  to  the  officers  of  the  Army  by 
the  Quartermaster's  Department,  only  for  horses  owned  and  actually 
kept  by  such  officers  in  the  performance  of  their  official  military 
duties  when  on  duty  with  troops  in  the  field  or  at  such  military  posts 
west  of  the  Mississippi  River,  as  may  be  from  time  to  time  designated 
bv  the  Secretary  of^War,  and  not  otherwise,  as  follows: "' 

"Then  follows  a  statement  of  officers  of  different  grades  with  the 
number  of  horses  authorilzed  for  each. 

The  act  of  February  24,  1881  (21  Stat.,  347),  provides  that— 

"  There  shall  be  no  discrimination  in  the  issue  of  forage  against 
officers  serving  east  of  the  Mississippi  River,  provided  they  are  re- 
quired by  law  to  be  mounted,  and  actually  keep  and  own  their  ani- 
mals." 

Vouchers  for  the  purchase  of  the  authorized  allowance  of  forage 
for  horses  kept  by  a  military  attache  serving  abroad  were  disallowed 


186        DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL. 

by  the  Auditor  for  the  War  Department  on  the  ground  that  the 
horses  for  which  the  forage  had  been  purchased  were  not  owned  by 
the  officer,  but  only  hired  for  his  temporary  use. 

Held^  on  appeal  from  the  Auditor's  decision,  that  the  acts  of  June 
18,  1878,  and  February  24,  1881,  did  not  repeal  section  1272,  Revised 
Statutes,  but  that  they  merely  imposed  an  additional  condition  upon 
officers  of  the  Army  serving  in  this  country,  requiring  that  they 
should  not  only  keep  but  should  actually  own  their  horses  used  in  the 
performance  of  their  military  duties ;  and  that  the  issue  of  forage  for 
the  authorized  mounts  of  officers  serving  abroad  as  military  attaches 
was  governed  by  section  1272,  Revised  Statutes,  which  did  not  impose 
such  additional  condition.  The  action  of  the  auditor  was,  therefore, 
overruled.  The  decisions  in  16  Comp.  Dec,  128,  and  19  Id.,  11,  were 
overruled,  in  so  far  as  they  were  in  conflict  with  this  decision. 

(19  Comp.  Dec,  460,  Jan.  23,  1913.) 


QUARTEBS:   Commutation;  occupying  a  bunk  in  public  quarters  of  anotlier 
officer  while  on  temporary  duty. 

An  officer  of  the  Army  proceeded  under  orders  to  a  station,  not  his 
regular  station,  for  temporary  duty,  and  while  so  engaged  occupied, 
by  courtesy,  a  bunk  in  the  public  quarters  of  another  officer.  At  the 
time  of  this  assignment  to  temporary  duty  the  officer  was  entitled  to 
and  was  receiving  commutation  of  quarters  at  his  permanent  station. 
The  assignment  was  not  regarded  as  a  change  of  station,  and  the 
officer  was  not  permitted  to  have  his  household  effects  transported -to 
the  place  of  temporary  duty.  He  did  not  apply  for  quarters  at  the 
temporary  station,  nor  were  any  such  quarters  assigned  to  him  there. 

II eld ^  that  an  officer  on  temporary  duty  who  did  not  voluntarily 
relinquish  his  right  to  commutation  of  quarters  at  his  permanent  sta- 
tion, was  not  deprived  thereof  by  the  mere  fact  that  he  occupied  a 
bunk,  or  even  a  room,  in  the  public  quarters  of  another  officer  at*  the 
temporary  station  through  the  courtesy  or  hospitality  of  said  officer. 
Commutation  of  quarters  was,  therefore,  allowed. 

(Comp.  of  the  Treas.,  Mar.  24,  1913.) 


TRANSPOSTATION:   Commodity    rates    on    household    goods    shipped    to 
Pacific  coast  points. 

On  request  of  the  Secretary  of  War  for  a  decision  as  to  the  appli- 
cation of  commodity  rates  on  household  goods  shipped  to  Pacific 
coast  points  per  Transcontinental  Westbound  Tariff,  1-M — 

Advised,  that  as  said  tariff  had  been  suspended,  no  decision  thereon 
was  in  order  until  the  same  should  be  recognized  as  an  effective 
tariff',  and  that  the  tariff  now  in  force  governing  shipments  of  the 
character  mentioned  appears  to  be  that  published  in  Transconti- 
nental Westbound  Tariff,  No.  12-D,  which  became  effective  July  11, 
1912.  Said  tariff  provided  for  a  rate  on  "  household  goods,  less  car- 
loads, taking  first-class  rate  under  heading  of  '  household  goods  of 
emigrants'  movables'  in  current  classification,"  the  value  of  each 
article,  to  be  declared  by  the  shipper,  not  to  exceed  a  certain  amount 
per  one  hundred  pounds  and  to  be  so  stated  in  the  bill  of  lading. 


DIGESr   OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL.        187 

Rule  16  of  said  tariff  provided  that  the  consignor  of  goods  niiglit 
elect  to  have  a  limited  liability  or  a  common  carrier's  liability  service, 
and  stipulated  that  ten  per  centum  higher  rate  should  be  charged  for 
the  increased  liability  service. 

Advised  jwrthev^  that  the  commodity  rates  provided  for  by  said 
tariff  were  the  lawful  and  only  rates  thtit  might  be  used  for  the'trans- 
portation  of  the  household  goods  indicated  between  the  points  foi- 
which  said  commodity  rates  were  published,  and  that  an  ordinarv 
shipment  on  a  regular  form  of  Government  bill  of  lading,  which  pro- 
vided for  shipment  at  owner's  risk,  would,  therefoio,  take  a  lower 
rate,  but  if  shipped  at  carrier's  risk,  the  higher  nitc  would  .ii.olv 
•    (Comp.  of  the  Treas.,  Feb.  25,  1913.) 


OPINION  OF  THE  ATTORNEY  GENERAL. 

(Digest  prepared  in  the  Office  of  the  .Tuflge  Advoe.-ite  Gpnoral.) 

TRANSPORT ATION":   Use    of    franking    privilege   in    transporting    matter 
pertaining  to  official  business  under  the  parcel-post  law. 

The  Secretary  of  the  Interior  asked  to  be  advised  whether  his  de- 
partment and  its  various  bureaus  and  offices  were  entitled  to  the 
benefit  of  the  parcel-post  law,  and  whether  they  had  a  right  to  send 
by  parcel  post  fourth-class  matter  not  exceeding  11  jiound^  in  weight 
under  penalty  envelopes  and  labels. 

The  pertinent  provisions  of  the  act  of  August  24, 1912,  establishing 
the  parcel-post  system  are  as  follows  : 

"  Sec.  8.  That  hereafter  fourth-class  mail  matter  shall  embrace  all 
other  matter,  including  farm  and  factory  products,  not  now  embracetl 
by  law  in  either  the  first,  second,  or  third  class,  not  exceeding  ele\'en 
pounds  in  Aveight,  nor  greater  in  size  than  seventy-two  inches  in 
length  and  girth  combined,  nor  in  form  or  kind  likely  to  injuie  the 
person  of  any  postal  emplo^^ee  or  damage  the  mail  equipment  or  other 
mail  matter  and  not  of  a  character  perishable  withm  a  period  rea- 
sonably required  for  transportation  and  delivery     *     *     *." 

""That  the  rate  of  postage  on  fourth-class  matter  weighing  not 
more  than  four  ounces  shall  be  one  cent  for  each  ounce  or  fraction  of 
an  ounce;  and  on  such  matter  in  excess  of  four  ounces  in  weight  the 
rate- shall  be  by  the  pound,  as  hereinafter  provided,  the  postage  in 
all  cases  to  be  prepaid  b}'  distinctive  postage  stamps  affixed.  (37 
Stat.,  557.)" 

Prior  to  the  enactment  of  the  statute  creating  the  penalty  privilege 
the  following  sections  of  the  Kevised  Statutes  were  in  force : 

"  Sec.  3896.  Postage  on  all  mail  matter  must  be  prepaid  by  stamps 
at  the  time  of  mailing  unless  herein  otherAvise  provided  for. 

"  Sec.  3897.  All  mail  mattei-  of  the  third-class  nuist  be  })rep:iid  in 
full  in  postage  stamps  at  the  office  of  mailing." 

The  departments  were  expressly  required  to  purchase  said  stamps 
for  official  use.  (Sec.  3915,  R.  S.,'  as  amended  Feb.  27,  1877,  19  Stat., 
250.)  At  this  time  the  third  class  of  mail  matter  included  merchan- 
dise as  well  as  miscellaneous  printed  matter. 

Section  17  of  the  act  of  March  3,  1879  (20  Stat.,  359),  defined  mad 
matter  of  the  third  class  to  embrace  "books,  transient  newspapers,  and 


188   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

periodicals,  circulars,  and  other  matter  wholly  in  print  '•'  *  *,"- 
on  which  postage  was  required  to  be  prepaid. 

Section  20  of  the  same  act  (id.,  360),  provided: 

"  That  mailable  matter  of  the  fourth  class  shall  embrace  all  matter 
not  embraced  in  the  first,  second,  or  third  class,  *  *  *,"  and 
limited  the  weight  to  not  exceeding  four  pounds  for  each  package 
except  in  case  of  single  books  w^eighing  in  excess  of  that  amount. 

The  penalty  privilege  for  official  business  was  brought  into  being 
by  the  act  of  "March- 3,  1877  (19  Stat.,  335),  section  5  of  which  pro- 
vided in  part  as  follows : 

"  That  it  shall  be  lawful  to  transmit  through  the  mail,  free  of  post- 
age, any  letters,  packages,  or  other  matters  relating  exclusively  to  tlie 
business  of  the  Government  of  the  United  States,"  complying  with 
certain  other  requirements.  Said  act  was  subsequently  amended,  the 
last  amendment  being  that  of  June  26,  1906  (34  Stat.,  467). 

Held^  that  there  were  two  sets  of  enactments,  dealing,  respectively, 
with  the  prepayment  of  postage  and  with  the  penalty  privilege, 
Avhich  were  adopted  and  subsequently  amended  Avithout  express  ref- 
erence to  each  other;  that  section  5  of  the  act  of  March  3,  1877,  re- 
lating to  the  penalt}'  privilege  indicated  no  intention  on  the  part  of 
Congress  to  restrict  said  privilege  to  classes  of  mail  matter  existing 
at  the  time  of  its  enactment  and  was  broad  enough  to  cover  any  class 
thereafter  established  or  any  change  in  the  Aveight  limit  of  an  ex- 
isting class;  and  that  the  legislation  relating  to  such  penalty  privi- 
lege extended  to  the  use  of  the  parcel-post  system  establislied  by  said 
act  of  August  24,  1912.  The  questions  asked  were,  therefore,  an- 
swered in  the  affirmative. 

(Op.  Atty.  Gen.,  Feb.  28,  1913.) 


BULLETIN  17. 

Bulletin  1  WAR  DEPARTAfEXT, 

No.  17.    J  Washington,  May  6,  1913. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  April,  1913,  and  of  certain  decisions 
of  the  Comptroller  of  the  Treasury,  opinions  of  the  Attorney  (gen- 
eral, and  decisions  of  the  courts,  is  published  for  the  information  of 
the  service  in  general. 

[2034028,  A.  O.  O.] 

By  order  of  the  Secretary  of  War  : 

LEONARD  WOOD, 

Major  General^  ( 'kief  of  Staff. 
Official  : 
GEO.  ANDREWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ABSENCE:  Leave  of,  to  clerks  and  employees  in  the  executive  departments. 

Section  7  of  the  act  of  March  15,  1898  (30  Stat.,  316),  requires  that 
the  heads  of  the  several  executive  departments  shall  exact  of  all 
clerks  and  employees  in  their  respective  departments  not  less  than 
seven  hours  of  labor  each  day,  except  on  Sundays  and  public  holi- 
days, and  further  provides  as  follows : 

"The  head  of  any  department  may  grant  thirty  days'  annual  leave 
with  pay  in  any  one  year  to  each  clerk  or  employee:  And  pt'oridcd 
further^  That  where  some  member  of  the  immediate  famil}'  of  a  clerk 
or  employee  is  afflicted  with  a  contagious  disease  and  requires  the 
care  and  attendance  of  such  employee,  or  where  his  or  her  presence  in 
the  department  would  jeopardize  the  health  of  fellow  clerks,  and  in 
exceptional  and  meritorious  cases,  where  a  clerk  or  employee  is  per- 
sonally ill,  and  where  to  limit  the  annual  leave  to  thirty  days  in  any 
one  calendar  year  would  work  peculiar  hardship,  it  may  be  extended, 
in  the  discretion  of  the  head  of  the  department,  with  pay,  not  exceed- 
ing thirty  days  in  any  one  case  or  in  any  one  calendar  year.'' 

Certain  employees'of  the  office  of  the  Chief  of  the  Quartermaster 
Corps  at  Washington,  D.  C,  had  been  absent  fi-om  duty  on  account 
of  illness  due  to  vaccination  against  smallpox. 

Held,  that  the  law  permits  the  granting  of  thirty  days'  leave  with 
pay  in  each  calendar  year,  which  is  to  be  exclusive  of  Sundays  and 
legal  holidays,  but  that  said  period  may  be  extended  not  to  exceed 
thirty  days  on  account  of  personal  illness  or  in  other  exceptional  and 

189 


190       DIGEST  OF   OPINIONS   OF    THE    JUDGE    ADVOCATE   GENERAL. 

meritorious  cases  mentioned  in  the  act :  held  further^  that  the  absence 
in  these  cases  should  be  charged  against  the  extension  of  leave  on  ac- 
count of  sickness,  if  the  cases  were  found  to  be  meritorious,  notwith- 
standing that  protection  by  vaccination  might  have  been  required  by 
the  sanitary  regulations  of  the  department. 
(2-151.1,  J.  A.  G.,  Apr.  3,  1913.) 


ABSENCE:   Leave    of,    to    a    pay    clerk    at    the    ITnited    States    Military- 
Academy. 

Section  1330,  Revised  Statutes,  provides: 

"  Leave  of  absence  may  be  granted  by  the  superintendent,  under 
regulations  prescribed  by  the  Secretary  of  War,  to  the  professors, 
assistant  professors,  instructors,  and  other  officers  of  the  academy 
for  the  entire  period  of  the  suspension  of  the  ordinary  academic 
studies  without  deduction  from  pay  or  allowances." 

A  pay  clerk  of  the  Quartermaster  Corps  was  on  duty  at  the  Mili- 
tary Academy,  and  the  question  arose  as  to  whether  he  was  entitled 
under  said  section  to  leave  of  absence  without  deduction  of  pay  or 
allowances  during  the  period  of  suspension  of  ordinary  studies  at  the 
academy,  although  his  usual  duties  continued  notwithstanding  such 
suspension. 

Fleld^  that  the  expression  "  other  officers  "  in  section  1330,  Revised 
Statutes,  was  intended  to  include  only  officers  of  the  academy  of  the 
class  previously  described,  to  wit,  professors,  assistant  professors, 
and  instructors;  that  the  pay  clerk,  although  an  officer  within  the 
meaning  of  the  laws  granting  leaves  of  absence  with  pay  to  officers 
of  the  Army  (18  Comp.  Dec,  564),  was  not  an  officer  of  this  class, 
and  was  not  entitled  to  the  leave  of  absence  provided  in  said  section ; 
but  that  the  question  of  his  leave  was  governed  by  the  laws  relating 
to  leaves  of  absence  to  commissioned  officers  of  the  Army  generally. 

(2-225,  J.  A.  G.,  Apr.  14,  1913.) 


APPROPE,! ATIONS :  Paying'  for  personal  services  from  lump-sum  appro- 
priations; construction  of  amendment  of  statute. 

Section  7  of  the  general  deficiency  act  of  August  26,  1912  (37 
Stat.,  626),  provides  as  follows: 

"  No  part  of  any  money  contained  herein  or  hereafter  appropriated 
in  lump  sum  shall  be  available  for  the  payment  of  personal  services 
at  a  rate  of  compensation  in  excess  of  that  paid  for  the  same  or  simi- 
lar services  during  the  fiscal  year  1912." 

Section  4  of  the  legislative,  executive,  and  judicial  appropriation 
act  of  March  4,  1913  (Public,  No.  427,  p.  58),  amended  said  section  7 
so  as  to  make  the  above  provision  read  as  quoted  except  to  substi- 
tute the  words  "  during  the  preceding  fiscal  year "  for  the  words 
"during  the  fiscal  year  1912,"  where  the  latter  appeared  in  said  pro- 
vision. 

Certain  civilian  inspectors  in  the  subsistence  department  were 
paid  for  personal  services  from  the  lump-sum  appropriation  con- 
tained in  the  Army  appropriation  act  passed  before  the  said  general 
deficiency  act,  and  which  appropriation  was  not  therefore  subject 


DIGEST    OF   OPINIONS  OF    THE   JUDGE   ADVOCATE   GENERAL.        191 

to  its  restrictions.  Their  employment  was  to  be  contiiniL'd  during 
the  fiscal  year  connnencing  July  1,  1913,  and  they  were  to  be  paid 
from  a  similar  appropriation  contained  in  the  Army  appropriation 
act  of  March  2,  1913,  which  latter  appropriation  would  come  within 
the  restrictions  of  the  act  of  August  26,  1912,  but  the  act  containing 
such  appropriation  was  passed  before  the  act  amending  the  one  last 
mentioned.  The  compensation  of  said  inspectors  had  been  increased 
during  the  fiscal  year  1913,  and  an  opinion  was  desired  as  to  whether 
this  increase  could  be  continued  for  the  succeeding  fiscal  yeai-  or 
whether  their  compensation  should  be  limited  to  the  rates  paid  dur- 
ing the  fiscal  year  19f2,  as  specified  in  the  general  deficiency  act 
before  amendment. 

^eZ^,  that  the  appropriations  referred  to  in  the  amendatory  law 
were  the  same  as  those  described  in  the  law  which  it  amended,  and 
that  the  rates  of  compensation  for  personal  services  paid  from  lump- 
sum appropriations  coming  within  the  operation  of  said  act  were  to 
be  governed  by  the  rates  paid  during  the  preceding  fiscal  year. 
Held  further^  that  the  pay  of  these  inspectors  might  be  increased 
during  the  fiscal  year  1913,  as  the  appropriation  from  which  they 
were  then  paid  was  not  subject  to  the  restrictions  of  the  act  of 
August  26,  1912,  and  that  they  might  be  paid  such  increased  com- 
pensation during  the  succeeding  fiscal  year,  as  the  appropriation  for 
such  year  would  come  within  the.  operation  of  the  law  as  amended. 

(5-075.  J.  A.  Cx.,  Apr.  14,  1913.) 


CIVIL  SERVICE:   Removal  of  classified  employees;  superintendent  of  the 
Antietam  battle  field. 

The  superintendent  of  the  Antietam  battle  field  is  provided  for 
by  the  annual  appropriation  in  the  act  of  Auoust  24.  1012  (3T  Stat., 
440) ,  of  the  sum  of  $1,500— 

"  For  pay  of  superintendent  of  Antietam  battle  field,  said  super- 
intendent to  perform  his  duties  under  the  direction  of  the  Quarter- 
master's Department  and  to  be  selected  and  appointed  by  the  Secre- 
tary of  War.  at  his  discretion,  the  person  selected  and  appointed  to 
this  position  to  be  an  honorably  discharged  T^nion  soldier." 

Opinion  was  desired  as  to  whether  or  not  this  position  came  within 
the  requirements  of  section  6  of  the  act  of  August  24,  1912  (37  Stat., 
,555),  which  provides  for  written  charges  and  hearings  before  dis- 
charge, and  the  record  thereof,  as  to  every  "person  in  the  classified 
civil  service  of  the  United  States."  ^.   .,  o       •      t»   i 

The  classified  service  is  defined  in  Rule  2  of  the  Civil  Service  hules 
as  including —  .         .  .         «    , 

"All  officers  and  emplovee.s  in  the  executive  civil  service  of  (lie 
United  States,  heretofore  or  hereafter  appointed  or  employed,  in 
positions  now  existing  or  hereafter  to  be  created,  of  whatever  tunc- 
'  tion  or  designation,  whether  compensated  by  fixed  salary  or  other- 
wise, except  persons  employed  merely  as  lalwrers,  and  persons  wliose 
appointments  are  subject  to  confirmation  by  the  ^Senate. 

Held,  that  the  position  of  superintendent  of  the  Antietam  battle 
field  clearly  came  within  this  definition  of  the  classified  service,  and 
that  there' was  nothing  in  the  appropriation  to  take  it  <>ut  of  saict 
service,  although  the  provision  that  the  superintendent  should  be  .se- 


192        DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

lected  and  appointed  by  the  Secretary  of  War  "  at  his  discretion " 
from  honorably  discharged  Union  soldiers  brought  it  within  the  class 
excepted  from  examination  under  the  rules.  Held  further^  that  the 
requirements  of  the  act  of  August  24,  1912,  relative  to  the  manner  of 
removing  persons  in  the  classified  service  should  be  observed  in  this 
case. 

(16-210,  J.  A.  G.,  Apr.  22,  1913.) 


CONTRACTS:  Reiease  of  contractor  from  performance. 

The  Government  had  a  contract  for  furnishing  it  with  electric 
power,  which  contract  contained  a  provision  for  its  renewal  at  the 
option  of  the  United  States  from  year  to  year  for  10  years.  When 
the  time  came  for  renewal  the  company  which  had  taken  over  the 
original  contract  at  first  declined  to  sign  the  renewed  contract  and 
consented  to  do  so  only  after  instructions  had  been  issued  that  in 
case  it  persisted  in  such  refusal  the  surety  on  the  bond  of  the  origi- 
nal contractor  would  be  requested  to  secure  compliance.  The  reasons 
assigned  for  such  refusal  were  that  the  rate  at  Avhich  electric  current 
was  then  being  furnished  was  below  cost  to  the  company,  and  that 
the  furnishing  of  such  current  at  said  rate  would  be  likely  to  bring 
it  into  conflict  with  the  laws  of  the  State  prohibiting  the  charging 
of  one  person  or  corporation  a  greater  or  less  rate  for  electric  current 
than  another. 

Held,  that  the  Government  having  acquired  valuable  rights  under 
the  contract  as  executed,  the  department  could  not  lawfully  release 
the  contracting  company  from  its  obligations,  if  such  action  would 
be  prejudicial  to  the  interests  of  the  United  States  (9  Opin.  Atty. 
Gen.,  81)  ;  that  the  United  States  is  not  within  the  meaning  of  the 
words  "  any  person,  firm,  or  corporation,"  as  used  in  the  State  statute 
against  discrimination  in  charges  for  services  of  this  character  as 
between  private  parties;  and  that  contracts  with  the  United  States 
are  controlled  by  the  laws  of  the  United  States  applicable  thereto 
and  not  by  State  legislation.  Held,  therefore,  that  the  statutes  of  the 
State  upon  the  subject  constituted  no  valid  ground  upon  which  relief 
could  be  granted  in  this  case.  United  States  v.  Fox  (94  U.  S.,  315, 
321) ;  Oshorn  v.  United  States  Bank  (9  l\Tieat.,  738,  867)  ;  15  Comp. 
Dec,  648. 

(76-610.  J.  A.  G.,  Apr.  3.  1913.) 


CONTRACTS:  Waiver  of  defects  in  goods  to  be  delivered,  and  acceptance 
upon  condition. 

A  contract  provided  for  the  delivery  of  oats  at  an  Army  post,  the 
same  to  be  "  as  inspected  by  the  Omaha  Grain  Exchange  in  carload 
lots."  The  circular  to  bidders,  attached  to  the  contract  and  made 
a  part  thereof,  provided  that  said  oats  should  be  "  dry  to  the  extent 
of  containing  not  to  exceed  12  per  cent  of  moisture."  It  did  not  ap- 
pear that  the  rules  of  the  Omaha  Grain  Exchange  provided  for  a 
moisture  test.  Oats  were  tendered  for  delivery  containing  moisture 
in  excess  of  the  requirement  of  the  contract. 

Held,  that  under  the  terms  of  the  contract  the  oats  tendered  were 
subject  to  rejection,  but  that  it  was  competent  for  the  Government  to 


DIGEST   OF    OPINIONS    OF    THE    JUIXJE    ADVOCATE    GENERAL.        193 

waive  the  defect  and  accept  the  oats  either  absohitely  or  upon  condi- 
tion;  held  further^  upon  consideration  of  the  evidence,  tliat  the  oats 
were  accepted  upon  the  condition  tliat  there  should  be  a  deduction 
made  from  the  contract  pi-ice  on  account  of  the  excess  of  moisture, 
and  that  settlement  should  be  made  accordingly. 
(76-640,  J.  A.  G.,  Apr.  15,  1913.) 


COURTS-MABTIAIi:    Expenses    of    taking    depositions    for;    appropriation 
chargeable. 

The  depositions  of  witnesses  residing  in  Canada  were  desired  for 
use  in  court-martial  proceedings  against  two  enlisted  men,  and  it  was 
necessary  in  order  to  procure  the  same  that  the  United  States  consul, 
who  Avas  to  take  the  depositions  should  incur  some  expenses  in  railway 
fares  and  hotel  bills  in  going  to  and  returning  from  the  place  of 
residence  of  the  witnesses,  as  it  would  be  more  expensive  to  summon 
the  witnesses  to  the  place  where  the  consul  resided.  The  Secretary 
of  State  indicated  his  willingness  to  direct  the  consid  to  take  the 
depositions  if  the  War  Department  would  bear  the  said  expenses. 

II eld ^  that  the  expenses  of  the  consul,  like  the  fee  of  a  notary  pub- 
lic, were  necessary  for  taking  the  depositions  and  were  proper 
charges  against  the  appropriation  for  expenses  of  courts-martial, 
courts  of  inquiry,  etc.,  contained  in  the  Armv  appropriation  act  of 
August  24,  1912  (37  Stat.,  575). 

(30-477.4,  J.  A.  G.,  Apr.  14,  1913.) 


DAMAGES:  Unliquidated;  not  arising  out  of  contract. 

A  section  of  a  concrete  walk  being  constructed  for  the  Government 
had  been  completed  by  the  contractors  in  the  afternoon  and  protected 
by  a  low  fence  consisting  of  stakes  driven  into  the  ground  and  a 
board  nailed  along  the  same.  The  walk  had  not  been  accepted  by  the 
Government  officials.  During  the  night  the  same  was  damajjed  by 
persons,  presumably  soldiers,  walking  over  the  same  before  it  had 
hardened  sufficiently,  doing  such  damage  as  to  necessitate  the  replac- 
ing of  the  top  coat. 

Ileld^  that  the  contractors  were  responsible,  so  far  as  the  United 
States  was  concerned,  for  all  damages  of  the  kind  mentioned  until 
the  walk  had  been  turned  over  to  tiie  Government ;  held  further,  that 
the  damages  being  unliquidated  and  not  arising  out  of  contract,  the 
executive  officers  could  not  allow  reimbursement  for  the  same. 

(18-420,  J.  A.  G.,  Apr.  7,  1913.) 

A  Government  steamer  in  backing  out  of  her  berth  in  a  fog  ran 
into  and  damaged  a  wharf  belonging  to  a  private  corporation.  Pub- 
lic requisitions  were  submitted  for  approval  covering  labor  and  mate- 
rial to  be  used  in  the  repair  of  said  Avharf. 

Held,  that  the  damages  occasioned  by  the  collision  were  unli<ini- 
dated  and  arose  out  of  tort  and  not  out  of  contract,  and  that  acconl- 
ing  to  the  well  settled  principle  that  executive  officers  have  no  autlior- 
itv  to  settle  or  allow  claims  for  damages  of  this  charactei-,  the  said 
damage  could  not  be  repaired  at  Govermnent  expense  and  the  requi- 
sitions should  not  be  approved. 

(18-420,  J.  A.  G.,  Apr.  16,  1913.) 

93668°— 17 13 


194        DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

EIGHT-HOTJK.  LAW:  Domestic  servants;  employees  of  the  Office  of  Public 
Building's  and  Grounds  serving  at  the  White  House. 

Certain  employees  of  the  Office  of  Public  Buildings  and  Grounds 
denominated  simply  as  laborers,  were  called  upon  to  render  service 
for  more  than  eight  hours  a  day  on  occasions  of  public  receptions  and 
similar  functions  at  the  ^^liite  House,  involving  duties  of  special 
trust  and  confidence.  Held,  that  these  employees,  though  designated 
as  laborers,  were,  while  performing  such  duties,  acting  in  the  capac- 
ity of  domestic  sei'vants,  and  did  not  come  within  the  operation  of 
the  eight-hour  law  of  August  1,  1892  (27  Stat.,  340),  limiting  the 
hours  of  employment  of  laborers  and  mechanics  to  eight  hours  in. 
any  one  day. 

(32-232,  J.  A.  G.,  Mar.  10  and  Apr.  12,  1913.) 


MEDICAL  ATTENDANCE:  Seamen  on  Government  vessels  engaged  in 
inter-island  traffic;  treatment  for  chronic  disorder;  care-taking  crew 
on  transports  out  of  commission. 

A  civilian  officer  on  a  Government  vessel  employed  in  inter-island 
commerce  in  the  Philippine  Islands  was  admitted  to  hospital  for  an 
operation  for  hernia,  described  as  "bilateral,  congenital,  and  in  no 
wise  incidental  to  his  service."  He  signed  no  shipping  articles,  but 
men  employed  in  this  service  were  liable  at  any  time  to  be  ordered  to 
China  or  Japan,  in  which  case  they  signed  the  usual  shipping 
articles. 

Held,  that  men  employed  upon  vessels  of  the  United  States  en- 
gaged in  inter-island  commerce  come  within  the  operation  of  the  rule 
giving  to  seamen  generally  medical  care  and  treatment  when  they 
become  sick  or  are  injured  in  the  service  of  their  vessels,  and  that  the 
official  in  this  case  was  entitled  to  the  benefit  of  the  rule,  although  he 
signed  no  shipping  articles  providing  for  such  treatment;  but,  held 
further,  that  he  was  not  entitled  to  be  treated  and  cured  at  the 
expense  of  the  United  States  of  a  chronic  disorder  which  existed  at 
the  time  he  entered  the  service,  but  that  he  might  be  treated  for  illne^ 
incurred  in  the  service  although  such  chronic  disorder  might  have 
been  the  cause  of  such  illness,  and  although  a  surgical  operation 
might  be  the  means  indicated  for  restoring  him  to  his  otherwise 
normal  condition. 

(94-120,  J.  A.  G.,  Apr.  7,  1913.) 

Members  of  a  care-taking  crew  of  four  Army  transports  out  of 
commission  and  laid  up  at  Newport  News,  Va.,  were  by  order  re- 
quired to  comply  with  the  rules  and  regulations  for  the  Army  trans- 
port service,  so  far  as  applicable,  as  well  as  with  those  governing 
the  duties  of  the  care-taking  crew.  They  signed  no  shipping  articles. 
Held,  in  the  case  of  one  of  said  employees  that  he  was  not  entitled  to 
be  treated  at  the  expense  of  the  United  States  for  an  injury  received 
in  the  course  of  his  employment  as  a  member  of  the  care-taking  crew, 
as  he  was  not  a  seaman  within  the  meaning  of  the  rule  giving  to 
seamen  medical  treatment. 

(94-124.1,  J.  A.  G.,  Apr.  16,  1913.) 


DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.        195 

PUBLIC  PROPERTY:  Disposal  of  sewage  on  a  military  reservation,  valu- 
able for  irrigation  thereon. 

The  sewage  of  a  military  reservation  was  needed  for  use,  after 
purification,  in  the  cultivation  of  forage  crops,  gardens,  etc.,  on  the 
reservation.  The  military  authorities  recommended  that  the  Gov- 
ernment construct  its  own  purification  plant,  for  whieli  part  of  the 
funds  were  already  available,  and  use  the  sewage  for  the  benefit  of 
the  post  and  reservation.  It  was  shown  that  the  raw  sewage  was 
worth  $6  per  million  gallons,  and  that  the  quantity  would  be  from 
2,000,000  to  3,000,000  gallons  per  day.  A  private  company  had  of- 
fered to  construct  a  purification  plant  and  to  receive  and  purify 
the  sewage  at  its  own  expense  and  to  save  the  Government  harmless 
against  the  pollution  of  streams  or  other  injuries  incident  to  the 
use  of  the  sewage,  in  return  for  the  right  to  receive  all  the  sewage 
from  the  reservation.  Another  company  desired  that  the  disposal 
of  the  sewage  should  be  made  the  subject  of  public  competition. 

Held^  that  this  sewage  was  the  property  of  the  United  States,  and 
having  a  positive  and  considerable  value  both  commercially  and  for 
use  on  the  Government  reservation,  where  it  appeared  to  be  much 
needed,  the  Secretary  had,  under  the  circumstances,  no  authority  to 
dispose  of  the  same  to  private  parties  in  either  of  the  methods  pro- 
posed. 

(80-132,  J.  A.  G.,  Apr.  16,  1913.) 


RETIRED    OFFICER:    Assignment    of,    to    active    duty    as    post-exchange 
officer. 

A  retired  Army  officer  expressed  a  desire  to  be  a&signed  to  active 
duty  as  post-exchange  officer  at  a  post  where  there  were  troops 
serving.     The  act  of  April  23,  1904  (33  Stat.,  264),  provides  that— 

"The  Secretary  of  War  may  assign  retired  officers  of  the  Army, 
with  their  consent,  to  active  duty  in  recruiting,  *  *  *  and  to 
staff  duties  not  involving  service  with  troops." 

A  post-exchange  officer  is  selected  and  detailed  by  the  post  com- 
mander, and  as  such  is  under  the  command  and  performs  duties  under 
the  supervision  of  the  same  authority. 

Held,  that  the  duties  of  a  post-exchange  officer  are  not  distinct  from 
those  of  an  officer  serving  with  troops,  but  are  habitually  i)erfoi-nio(l 
by  an  officer  so  serving,  and  that  this  officer  might  not  lawfully  be 
assigned  to  the  duty  in  question. 

(88-600,  J.  A.  G.,  Apr.  8,  1913.) 


ROADS  AND  STREETS:  Control  of,  on  military  reservations;  jurisdiction. 
A  strip  of  land  on  a  military  reservation,  over  which  jurisdiction 
had  been  ceded  to  the  United  States,  had  been  occupied  by  an  emer- 
gency levee.  A  public  highway  which  had  existed  as  far  back  as 
1846"had  occupied  for  the  greater  part  of  its  course  across  the  reserva- 
tion land  then  occupied  by  the  new  levee.  The  civil  authorities 
desired  that  a  new  road  be  located  across  the  reservation  as  nearly  as 
possible  to  the  line  of  the  old  road,  and  opened  to  public  travel. 


196       DIGEST  OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

In  another  case  it  was  desired  to  know  what  legal  steps  were 
proper  to  be  taken  in  order  to  close  certain  avenues  lying  within  the 
limits  of  a  city  and  of  a  military  reservation.  There  was  no  public 
need  for  these  streets,  but  it  w^as  claimed  that  the  city  had  certain 
property  rights  therein  for  which  it  might  be  entitled  to  compensa- 
tion in  case  the  avenues  were  closed. 

Held^  in  the  first  case,  that  the  cession  to  the  United  States  of 
exclusive  jurisdiction  over  a  military  reservation  gave  it  full  control 
over  all  public  servitudes  on  the  same,  including  the  right  to  open 
and  close  public  highways;  and  that  if  it  was  to  the  interests  of  the 
United  States  the  military  authorities  might  decline  to  open  up  a 
new  road  in  the  place  of  the  one  that  formerly  existed  across  the 
reservation,  but  which  had  been  occupied  by  the  emergency  levee. 

HeM^  in  the  second  case,  that  the  acquisition  of  the  property  for 
fortification  purposes,  together  with  the  cession  of  exclusive  jurisdic- 
tion by  the  State,  might  be  regarded  as  authority  for  closing  any 
public  highway  within  the  limits  of  the  reservation  if  deemed  neces- 
sary for  the  purposes  for  which  the  property  was  acquired,  and  that 
the  streets  in  question  might  be  closed  by  the  military  authorities 
if  thought  necessary. 

(80-626,  J.  A.  G.,  Apr.  1  and  12,  1913.) 


SUBSISTENCE:  Commutation  of  rations;  reimbursement  for  expenditure  in 
excess  of  commutation  allowance. 

Two  enlisted  men  while  traveling  as  a  detachment  by  train  were 
compelled  to  purchase  subsistence  on  the  dining  car,  and  expended 
for  this  purpose  a  sum  in  excess  of  $1.50  per  day  each,  being  the 
commutation  allowance  to  each  of  two  men  traveling  as  a  detach- 
ment under  orders,  as  specified  in  subparagraph  6  of  paragraph  1245, 
Army  Regulations,  1910.  The  Army  appropriation  act  of  August 
24,  1912  (37  Stat.,  578).  appropriates  for  the  payment — 

"  Of  the  regulation  allowances  of  commutation  in  lieu  of  rations 
to  *  *  *  enlisted  men  *  *  *  when  traveling  on  detached 
duty  where  it  is  impracticable  to  carry  rations  of  any  kind." 

Appropriations  have  been  made  in  the  same  language  in  the  Army 
appropriation  acts  for  many  years  past. 

On  application  for  reimbursement  for  the  amount  expended  in  ex- 
cess of  the  commutation  allowance,  h.eTd,  that  the  regulation  allow- 
ance of  commutation  having  been  made  the  basis  of  the  appropria- 
tion for  commutation  in  lieu  of  rations,  said  allowance  as  it  existed 
at  the  time  the  expense  was  incurred  could  not  be  exceeded,  and 
that  the  amounts  paid  in  excess  of  such  allowance  could  not  be  re- 
imbursed. 

(72-432,  J.  A.  G.,  Apr.  17,  1913.) 

Held  further^  that  the  appropriation  for  the  payment  of  the  regu- 
lation allowances  of  commutation  in  lieu  of  rations  does  not  amount 
to  a  legislative  adoption  of  the  amounts  prescribed  by  the  then  ex- 
isting regulations,  so  as  to  limit  the  expenditure  which  can  be  made 
under  the  appropriation,  but  that  said  appropriation  is  available  for 
the  payment  of  said  allowances  whatever  they  may  be  at  the  time. 
The  appropriation  presupposes  that  the  regulations  are  operative 


DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.        197 

as  such  and  subject  to  change,  and  is  avaihible  for  any  change  in  the 
allowance  made  necessary  bv  a  change  in  the  regulation. 
(Idem.,  Apr.  23,  1913.) 


TRANSPORTATION:  Use  of  the  parcel-post  system;  insuring  transmission 
of  public  property. 

Section  8  of  the  act  of  August  24, 1912  (37  Stat.,  558),  establishing 
the  parcel-post  system,  provides  among  other  things  that — 

"The  Postmaster  General  shall  make  provision  by  regulation  for 
the  indemnification  of  shippers,  for  shipment  injured  or  lost,  by  in- 
surance or  otherwise,  and,  when  desired,  for  the  collection  on  delivery 
of  the  postage  and  price  of  the  articles  shipped,  fixing  such  charges 
as  may  be  necessary  to  pay  the  cost  of  such  additional  services." 

Regulations  have  accordingly  been  issued  by  the  Post  Oiiice  De- 
partment, providing  for  giving  receipts  for  insured  packages  trans- 
mitted through  the  parcel-post  system  and  fixing  charges  therefor 
which  are  to  be  paid  in  parcel-post  stamps  attached  to  the  packages. 
Said  regulations  make  provision  for  indemnification  in  case  of  loss, 
but  no  additional  facilities  or  safeguards  are  provided  for  the  trans- 
portation of  insured  packages,  and  they  are  treated  otherwise  as 
ordinary  mail  matter.     Receipts,  however,  are  exacted  on  delivery. 

Held^  that  as  it  is  not  the  policy  of  the  Government  to  insure  its 
property,  and  as  the  sending  of  packages  through  the  parcel-post 
system  and  insuring  them  according  to  the  regulations  prescribed, 
would  amount  simply  to  such  insurance  without  obtaining  any  addi- 
tional security  against  loss  than  a  money  indemnity,  the  use  of  ap- 
propriations of  the  War  Department  for  the  purpose  of  so  insuring 
such  packages  containing  government  property  would  not  be  au- 
thorized. 

(94-070,  J.  A.  G.,  Apr.  23,  1913.) 


TRANSPORTATION:  Shipments  of  Government  supplies  on  vessels  not  of 
American  register. 

The  act  of  April  28,  1904  (33  Stat.,  518),  directs  that  all  supplies 
for  the  Army  and  Navy  shall  be  shipped  in  vessels  of  American 
register  "  unless  the  President  shall  find  that  the  rates  of  freight 
charged  by  said  vessels  are  excessive  and  unreasonable,'-  in  wliich 
case  contracts  shall  be  made  under  the  law  as  it  then  existed,  with 
the  proviso  that  no  greater  charge  should  be  made  by  such  vessels 
for  transportation  of  articles  for  the  United  States  for  the  Army  and 
Navy  than  are  made  by  such  vessels  for  transportation  of  like  goods 
for  private  parties. 

An  American  steamer  was  scheduled  to  sail  from  San  Francisco 
to  Manila,  P.  I.,  on  April  12,  and  the  next  sailing  of  an  American 
vessel  from  said  port  to  Manila  would  be  June  21.  Between  said 
dates  it  was  contemplated  that  there  would  be  large  consignments 
of  public  stores  arriving  in  San  Francisco  for  shipment  to  Manda, 
and  it  was  doubtful  whether  the  transports  schedukHl  for  sading 
May  5  and  June  5  could  accommodate  all  of  such  property  re(iuinng 
transshipment  to  Manila  during  this  period.  No  American  vessels 
were  available. 


198        DIGEST   OF   OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

Held,  that  under  the  circumstances,  and  there  being  no  American 
vessels  available,  the  excess  of  shipments  which  could  not  be  sent 
by  the  Government  transports  sailing  May  5  and  June  5  might 
properly  be  sent  by  vessels  of  foreign  register,  in  order  to  avoid 
holding  the  shipments  at  San  Francisco  for  so  long  a  period. 
C-20928,  J.  A.  G.,  Jan.  19,  1907. 

(94-080,  J.  A.  G.,  Apr.  18,  1913.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE   TREASURY. 
(Digests  prepared  in  the  Office  of  the  Judge  Advocate  General.) 

ACCOXTNTINGr:  Loss  of  original  vouchers  and  abstracts  and  the  substitution 
of  copies. 

The  accounts  of  an  Army  paymaster  for  the  month  of  May,  1912, 
were  lost  while  in  transit  on  the  S.  S.  Brutus  by  the  sinking  of  that 
vessel  on  the  coast  of  Mindanao,  and  the  officer  transmitted  his 
retained  and  memorandum  vouchers  certified  by  him  to  be  true 
copies  of  the  originals.  The  memorandum  vouchers  did  not  con- 
tain the  certificate  of  the  payees  nor  the  receipt  of  the  payees  where 
payment  had  been  made  in  cash.  The  expenditures  consisted  almost 
entirely  of  payments  to  officers  and  enlisted  men  of  the  Army  upon 
pay  rolls  which  were  paid  in  cash,  and  duplicate  receipts  were  there- 
fore not  supplied.  Paragraph  7  of  Treasury  Department  Circular 
No.  52  of  July  29,  1907,  provides: 

"  7.  Unless  required  by  law,  vouchers  shall  not  be  taken  in  exact 
duplicate,  triplicate,  etc.  Only  one  copy  of  a  voucher,  the  original, 
shall  contain  signed  certifications,  approvals,  and  receipts.  As  many 
copies,  in  memorandum  form,  duly  authenticated  if  desired,  may  be 
taken  as  administrative  requirements  demand." 

Held,  that  while  it  would  require  a  great  deal  of  work  to  make  the 
audit  in  said  case  with  the  evidence  at  hand,  an  audit  might  be 
made  with  sufficient  accuracy  to  determine  whether  the  officer  was 
entitled  to  the  credit  claimed  by  him,  and  credit  should  be  allowed 
according  to  the  best  evidence  obtainable. 

(Comp.  of  the  Treas.,  Apr.  14,  1913.) 


APPROPRIATIONS:   Expenses   of   an    officer   of   the   Army   attending   the 
meetings  of  a  prison  association;  appropriation  chargeable. 

An  officer  of  the  Army  stationed  at  Washington,  D.  C,  was  desig- 
nated by  the  Secretary  of  War  to  attend  the  meeting  of  the  American 
Prison  Association  to  be  held  at  Baltimore,  Md.,  during  the  month 
of  November,  1912,  for  the  purpose  of  obtaining  information  relative 
to  prisons  and  prisoner  to  be  used  in  connection  with  the  Army. 
Upon  completion  of  this  duty  he  was  to  return  to  his  proper  station. 

Held,  that  as  the  officer's  journey  to  and  from  Baltimore  was  on 
Army  business,  and  was  made  in  obedience  to  the  orders  of  the  Sec- 
retary of  War,  his  right  to  reimbursement  for  expenses  must  be 
determined  by  the  mileage  laws  for  the  Army,  under  which  he  was 
entitled,  for  the  distance  traveled,  to  7  cents  per  mile  and  no  more, 
payable  from  the  mileage  appropriation. 

(Comp.  of  the  Treas.,  Apr.  25,  1913.) 


DIGEST  OF   OPINIONS  OF    THE   JUDGE   ADVOCATE   GENERAL.        199 

ASSOCIATIONS:   Membership  dues  in  International  Association  of  Chiefs 
of  Police. 

The  Auditor  for  the  War  Department  disallowed  an  item  of  $5  in 
the  accounts  of  a  disbursing  officer,  the  same  being  for  "  animal  dues 
for  one  year  for  membership  of  the  Adjutant  General  in  the  Inter- 
national Association  of  Chiefs  of  Police,"  on  the  grotmd  that  pay- 
ment of  the  same  was  prohibited  by  section  8  of  the  act  of  June  20, 
1912  (37  Stat.,  184),  which  provides: 

"No  money  appropriated  by  this  or  any  other  Act  shall  be  ex- 
pended for  membership  fees  or  dues  of  any  officer  or  employee  of 
the  United  States  or  of  the  District  of  Columbia  in  any  society  or 
association  or  for  expenses  of  attendance  of  any  pei-son  at  any  meet- 
ing or  convention  of  members  of  any  society  or  association,  unless 
such  fees,  dues,  or  expenses  are  authorized  to  be  paid  by  specific 
appropriations  for  such  purposes  or  are  provided  for  in  express 
terms  in  some  general  appropriation." 

The  voucher  covering  the  disbursement  in  question  was  paid  from 
the  appropriation  for  "  Incidental  expenses.  Quartermaster's  Depart- 
ment, 1913,"  which  does  not  specifically  authorize  the  payment  of 
membership  fees  or  dues  of  any  officer  or  employee  of  the  United 
States  in  any  society  or  association. 

Held^  that  in  view  of  the  specific  prohibition  contained  in  said 
act  of  June  26,  1912,  the  payment  of  a  membership  fee  in  the  Inter- 
national Association  of  Chiefs  of  Police  was  not  authorized  and  that 
the  disallowance  by  the  auditor  should  be  affirmed. 

(Comp.  of  the  Treas.,  Apr.  9,  1913.) 


AVIATION  SERVICE:  Increase  of  pay  and  allowances  for. 

The  Army  appropriation  act  of  March  2,  1913  (Public,  No.  401, 
p.  3),  provides  that — 

"  The  pay  and  allowances  that  are  now  or  may  hereafter  be  fixed 
by  law  for  officers  of  the  Regular  Army  shall  be  increased  thirty-five 
per  centum  for  such  officers  as  are  now  or  may  hereafter  be  detailed 
by  the  Secretary  of  War  on  aviation  duty:  Provided^  That  this  in- 
crease of  pay  and  allowances  shall  be  given  to  such  officers  only  as  are 
actual  fliers  of  heavier  than  air  crafts,  and  while  so  detailed :  Pro- 
vided further^  That  not  more  than  thirty  officers  shall  be  detailed  to 
the  aviation  service." 

On  application  for  opinion  by  the  Secretary  of  War,  held,  that  the 
increase  of  pay  provided  for  in  said  act  applies  to  the  regular  pay 
of  an  officer  of  the  Army  detailed  for  duty  under  said  provision, 
including  longevity  pay,  foreign-service  pay,  additional  pay  for 
providing  mounts,  or  any  other  additional  pay,  and  also  couiniutut  ion 
of  quarters  or  any  other  allowance  which  the  officer  is  entitled  to 
receive  in  money  while  so  detailed,  including  mileage  for  travel  under 
orders:  but  that  the  law  does  not  contemplate  an  increase  in  any 
allowance  that  the  officer  is  entitled  to  receive  in  kind  only,  such  as 
heat  and  light,  medicines  and  medical  attendance,  quarters,  forage, 
shelter  for  mounts,  etc. 

(Comp.  of  the  Treas.,  Apr.  8,  1913.) 


200       DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENEEAL. 

CONTRACTS:  Assignment  of;  payments  under  after  assignment. 

A  certain  company  entered  into  a  contract  with  the  Government 
to  deliver,  during  the  period  from  July  1  to  December  31,  1912,  such 
quantities  of  fresh  potatoes  as  might  be  required  at  Fort  Moultrie, 
S.  C,  at  the  rate  of  2.35  cents  per  pound.  On  July  27,  1912,  another 
company  purchased  outright  the  branch  house  of  the  contractor  at 
Charleston,  S.  C,  through  which  the  contract  had  been  supplied,  in- 
cluding all  of  the  business  pertaining  to  said  branch,  and  thereafter 
and  until  October  30,  1912,  the  assignee  company  conducted  said 
business  under  a  trade  name  different  from  that  of  the  original  con- 
tractor, and  after  the  last-mentioned  date  conducted  the  business  un- 
der its  own  name.  The  assignee  continued  to  receive  and  fill  orders 
as  under  the  contract  with  the  original  contractor,  either  in  the  name 
adopted  by  it  for  the  business  or  in  its  own  name,  and  was  paid  for 
deliveries  as  the  "  successor  "  to  the  original  contractor.  On  Decem- 
ber 31,  1912,  the  assignee  in  its  own  name,  on  request,  delivered 
10,789  pounds  of  potatoes  as  under  the  contract,  and  the  same  were 
accepted  and  used.  Payment  was  asked  for  the  same  as  the  successor 
of  the  original  contractor. 

Section  3737,  Eevised  Statutes,  provides  that — 

"  No  contract  or  order,  or  any  interest  therein,  shall  be  trans- 
ferred by  the  party  to  whom  such  contract  or  order  is  given  to  any 
other  party,  and  any  such  transfer  shall  cause  the  annulment  of  the 
contract  or  order  transferred,  so  far  as  the  United  States  are  con- 
cerned. All  rights  of  action,  however,  for  any  breach  of  such  con- 
tract by  the  contracting  parties,  are  reserved  to  the  United  States." 

Held^  that  the  sale  by  the  original  contractor  of  its  plant  and  busi- 
ness at  Charleston,  S.  C,  including  its  interest  in  existing  contracts, 
did  not  operate  to  transfer  to  the  assignee  any  of  the  rig-hts  or  obli- 
gations under  the  contract  in  question,  and  that  the  bills  for  supplies 
furnished  under  the  contract  should  be  made  out  in  the  name  of  and 
payments  made  to  the  original  contractor. 

(Comp.  of  the  Treas.,  Apr.  16.  1913.) 


CONTRACTS:  Deduction  for  delay  in  delivery;  delay  in  presenting  claim. 

By  contract  dated  June  13,  1902,  a  contractor  agreed  to  furnish 
and  deliver  on  or  before  August  27,  1902,  a  certain  number  of  cotton 
shirts,  with  a  provision  for  an  increase  of  20  per  cent  in  the  number 
to  be  delivered,  at  the  average  rate  of  1,000  shirts  per  day,  with  a 
deduction  from  the  contract  price  at  certain  rates  for  deliveries  under 
the  contract  after  said  last-mentioned  date.  The  contract  was  not  to 
become  effective  until  approved  by  the  Quartermaster  General,  which 
approval  was  not  obtained  until  July  7,  1902.  Deliveries  were  com- 
pleted vmder  the  contract,  including  delivery  of  the  20  per  cent  in- 
crease, on  November  17,  1902.  Had  deliveries  been  commenced  and 
made  at  the  rate  agreed  upon,  the  contract,  including  the  increase  in 
amount,  would  have  been  completed  September  9,  1902.  Deduction? 
were  made  according  to  the  t^rms  of  the  contract  in  making  pay- 
ment for  belated  deliveries,  to  w^hich  deductions  the  contractor  sub- 
mitted at  the  time.  Full  and  final  settlement  was  made  December  8, 
1902,  at  which  time  the  contractor,  without  protest,  certified  the  final 
voucher  to  be  correct,  and  accepted  payment. 


DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE    GENERAL.       201 

By  letter  of  February  16,  1903,  a  Member  of  Congress  on  belialf 
of  the  manufacturers  claimed  that  the  deductions  ^yere  excessive, 
and  the  contractor  asked  that  the  contentions  of  the  manufacturer 
be  considered  as  his  own,  and  treated  as  a  claim  for  a  refund  of  the 
deductions.  On  April  1,  1903,  the  Quartermaster  (ieneral  advised 
the  Member  of  Congress  that  the  claim  coukl  not  be  aHowed.  The 
matter  then  rested  until  the  filing,  about  eight  years  later,  of  the 
present  claim,  which  was  disallowed  by  the  Comptroller  of  the 
Treasury  April  1,  1912. 

Held^  that  as  the  contractor  had  accepted  settlement  with  a  full 
knowledge  of  all  the  facts  now  presented,  consenting  to  the  deduc- 
tion and  certifying  to  the  correctness  thereof. at  the  time  when  all 
the  facts  were  fresh  in  his  mind,  no  reason  existed  for  granting  a 
rehearing  in  the  case. 

(Comp.  of  the  Treas.,  Apr.  19,  1913.) 


CONTRACTS:  Deliveries  after  time  for  completion;  cost  of  inspection. 

A  contract  provided  for  the  delivery  of  a  certain  number  of  hats 
within  a  given  time,  and  provided  further  that  if  deliveries  were 
not  completed  within  the  time  specified  deductions  should  be  made 
of  the  cost  of  inspection  thereafter.  Upon  consideration  of  the  ques- 
tion as  to  whether  deduction  should  be  made  for  the  whole  of  the 
inspector's  time  during  the  period  of  delay  or  only  for  the  time 
actually  employed  in  inspecting  the  hats  delivered  after  the  time  for 
completion  had  expired,  held,  that  deduction  should  be  made  only  for 
the  time  actually  employed  by  the  inspector  in  making  the  inspection 
of  hats  delivered  after  the  time  for  the  completion  of  the  contract. 

(Comp.  of  the  Treas.,  Apr.  22,  1913.) 


CONTRACTS:  Time  for  completion;  delay  in  approving. 

A  contract  dated  June  29,  1911,  was  entered  into  for  the  installa- 
tion of  certain  electrical  apparatus  at  an  Army  post  which  provided 
that  the  work  in  said  contract — 

"  shall  commence  on  or  before  the  30th  day  of  June,  1911.  and  .shall 
be  carried  on  with  reasonable  dispatch  and  be  completed  on  or  before 
the  13th  dav  of  November,  1911." 

It  was  further  provided  that  such  contract  was  made  ''  subject  to 
the  approval  of  the  Quartermaster  General,  United  States  Arniy," 
but  the  same  was  not  actually  approved  by  that  officer  until  Sep- 
tember 21,  1911.  By  supplemental  agreement  the  time  hmit  for  the 
completion  of  the  contract  w^as  extended  to  December  15,  1911,  with 
the  proviso  that  any  excess  in  the  cost  of  inspection,  or  other  adili- 
tional  expenses  or  damages  to  the  United  States,  over  what  would 
have  been  incurred  had  the  work  been  completed  by  the  date  origi- 
nally fixed  for  its  completion,  should  be  charged  to  the  contractor. 
The  work  was  actually  completed  December  13.  1911,  and  final  pay- 
ment made.  The  auditor  disallowed,  in  the  accounts  of  the  disburs- 
ing officer  making  the  payment,  an  amount  eciual  to  the  saving  in 
operation  of  the  new  plant  over  the  old  from  November  13  to  Decem- 
ber 13,  1911,  upon  the  theory  that  the  contractor  was  obligated  to 


202        DIGEST   OF   OPINIONS   OP    THE    JUDGE   ADVOCATE   GENERAL, 

complete  the  work  by  the  former  date,  and  that  his  failure  to  do  so 
resulted  in  the  damages  stated. 

Ileld^  that  the  contract  did  not  become  binding  until  September  21, 
1911,  when  it  was  approved  by  the  Quartermaster  General,  and  that 
the  contractor  was  not,  therefore,  bound  to  complete  the  work  by  the 
date  stated  in  the  contract,  but  only  to  complete  the  same  within  a 
reasonable  time  after  such  approval.  Held  fiivtlier^  that  the  supple- 
mental contract  operated  to  fix  the  date  by  which  the  work  should  be 
completed,  which  date  took  the  place  of  the  reasonable  time  for  com- 
pletion to  wdiich  the  contractor  would  have  otherwise  been  entitled, 
and  that  the  contractor  having  completed  the  work  within  the  time 
thus  fixed,  was  not  in  default,  and  Vv'as  not  subject  to  the  deductions 
provided  for  in  the  contract  for  failure  to  complete  by  the  time 
specified. 

(Comp.  of  the  Treas.,  Mar.  26,  1913.) 


PURCHASE  OE  SUPPLIES:  Executive  departments  and  establishments  at 
Washington,  D.  C. ;  General  Supply  Committee. 

The  Chief  of  the  Signal  Corps,  whose  office  is  located  at  Washing- 
ton, D.  C,  was  about  to  purchase  certain  screws  according  to  a  list 
presented,  the  price  of  the  same  as  quoted  to  the  Signal  Corps  by  a 
private  manufacturer  being  less  than  the  price  shown  on  the  general 
supply  schedule  of  the  supply  committee  for  the  same  or  similar 
articles.  It  was  not  disputed  but  that  the  screws  were  articles  of 
miscellaneous  supplies  within  the  meaning  of  the  act  of  June  17,  1910 
(36  Stat.,  531),  providing  for  purchases  of  supplies  for  the  execu- 
tive departments  and  establishments  of  the  Government  in  Washing- 
ton through  the  medium  of  the  General  Supply  Committee  therein 
authorized. 

Heidi  that  if  screws  of  this  character  had  been  advertised  and  con- 
tracted for  and  scheduled  by  the  Secretary  of  the  Treasury  as  required 
by  said  act,  all  departments  and  establishments  of  the  Government  in 
Washington  were  required  to  purchase  and  use  exclusively  the  screws 
so  contracted  for  and  scheduled,  and  that  the  Secretary  of  War 
might  lawfully  purchase  screws  thus  contracted  for  from  no  other  one 
than  the  contractor  of  the  supply  committee. 

(Comp.  of  the  Treas.,  Apr.  22,  1913.) 


PURCHASE  OF  SUPPLIES:  Payment  of  discounts  on  bills  for  gas. 

Bills  were  rendered  for  gas  furnished  to  the  United  States  subject 
to  a  discount  of  20  cents  per  1,000  feet  if  paid  on  or  before  the  10th  of 
the  month.  In  one  case  the  check  given  in  payment  of  the  monthly 
bill  showed  that  it  was  indorsed  at  the  bank  before  the  expiration  of 
the  discount  period,  and  in  another  case  the  check  was  drawn  on  the 
last  day  on  which  discount  would  be  allowed,  but  the  indorsement  in- 
dicated that  it  was  paid  after  said  date.  Both  bills  were  paid  with- 
out deduction  of  the  discount.  The  auditor  disallowed  the  amount  of 
the  discounts,  in  the  first  case  because  payment  was  made  before  the 
expiration  of  the  discount  period,  and  in  the  second  case  because  the 
officer  was  apparently  negligent  in  not  paying  the  account  in  time  to 
secure  the  discount. 


DIGEST  OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       203 

Held^  on  appeal,  that  the  first  bill  having  been  paid  within  the 
period  when  discount  should  have  been  allowed,  the  overpayment  of 
the  amount  of  the  discount  was  properly  disallowed;  and' that  tlio 
second  bill  not  having  been  paid  until  after  the  right  to  the  discount 
had  lapsed,  the  company  furnishing  the  gas  became  entitled  to  the 
full  amount  of  the  bill.  The  payment  w^as,  therefore,  legally  made, 
and  the  accounting  officers  were  not  justified  in  disallowing  the 
amount  of  the  discount. 

(Comp.  of  the  Treas.,  Apr.  3,  1913.) 


QUARTERS:  Commutation  of,  on  day  of  relief  from  duty. 

Certain  officers  on  duty  at  the  Army  War  College  at  Washington, 
D.  C,  were  by  special  orders  relieved  from  duty  to  take  effect  July  1, 
1912,  granted  leaves  of  absence  to  take  effect  on  being  relieved  from 
duty,  and  directed  then  to  proceed  to  their  proper  stations. 

HeM,  that  the  allowance  of  commutation  of  quarters  is  analogous 
to  allowance  of  pay,  and  that  the  officers  in  question  were  entitled  to 
commutation  for  the  day  they  were  relieved  from  duty. 

(Comp.  of  the  Treas.,  Apr.  16,  1913.) 


TRANSPORT ATIOIST:   Of  the  Army;  BKre  of  means  of  transportation   for 
ofla.cers  engaged  upon  map  work;  Appropriation  chargeable. 

It  was  contemplated  to  order  an  officer  of  the  Coast  Artillery  Corps 
to  take  station  for  fieldwork  in  the  preparation  of  maps  necessary  in 
the  military  service  in  connection  with  which  it  w^ould  be  necessary  to 
perform  local  travel,  both  on  land  and  water.  A  decision  was  desired 
from  the  Comptroller  upon  the  following  questions: 

{a)  Whether,  in  the  case  of  officers  (not  receiving  pay  and  allow- 
ances as  mounted  officers)  engaged  in  the  performance  of  duties 
assigned  to  them,  or  required  to  do  local  travel  such  as  indicated 
above,  payment  may  be  made  from  public  funds  for  the  hire  of 
necessary  and  suitable  means  of  local  transportation; 

{h)  Whether  payment  for  such  hire  is  authorized  in  the  case  of 
officers  who  receive  pay  and  allowances  as  mounted  officers  when 
such  local  travel  is  required  of  them  and  the  same  can  not  properly 
be  accomplished  by  the  use  of  saddle  horses;  and  also 

(c)  Whether  payment  is  authorized  for  the  hire  of  saddle  horses, 
when  necessary,  for  the  use  of  mounted  officers  on  such  detached 
service  where  it  would  be  an  excess  of  expense  to  the  Government  for 
the  transportation,  care,  and  maintenance  of  the  private  mounts  of 
those  officers  in  order  to  have  them  available  at  place  of  duty. 

The  foregoing  questions  were  framed  upon  the  supposition  that 
mileage  was  not  to  be  paid  for  the  travel  for  which  the  transporta- 
tion was  to  be  furnished. 

Held,  that  under  the  provisions  of  the  act  of  May  11,  1908  (35 
Stat.,  108),  it  is  the  duty  of  the  United  States  to  fui-nish  the  noce.s- 
sary  mounts  and  horse  equipments  to  officers  below  the  grade  of 
ma'jor  entitled  to  be  mounted,  and  that  where  it  would  be  impossible 
or  impracticable  to  provide  such  mounts,  and  the  exigencies  of  the 
service  should  require  the  officer  to  be  mounted,  horses  might  bo 


204        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

hired  for  such  purpose,  and  the  appropriation  for  the  transportation 
of  the  Army  and  its  supplies  could  be  used  in  payment  for  the  hiring 
of  the  same.  The  decisions  reported  in  17  Comp.  Dec,  384,  and  in  19 
idem,  65,  were  overruled  in  so  far  as  they  were  in  conflict  with  said 
decision. 

Held  further^  that  if  an  officer  below  the  grade  of  major,  required 
to  be  mounted,  and  who  provides  himself  with  suitable  mounts, 
should  be  detailed  away  from  his  station  to  a  duty  requiring  him  to 
be  mounted,  and  the  War  Department  should,  by  reason  of  the  exces- 
sive cost  of  transportation,  refuse  to  transport  his  mounts  to  his  new 
place  of  duty,  a  mount  might  be  hired  for  his  use,  and  payment  for 
such  hire  could  be  made  from  the  appropriation  for  the  transporta- 
tion of  the  Army  and  its  supplies. 

(Comp.  of  the  Treas..  Apr.  22,  1913.) 

An  officer  of  the  Army  engaged  on  military  map  work  was  author- 
ized to  hire  a  motor  cj'cle  for  his  use,  at  not  to  exceed  a  certain  rate 
per  month,  and  to  purchase  the  gasoline  necessary  therefor. 

Held.,  That  the  hire  of  said  motor  cycle  and  the  cost  of  furnishing 
gasoline  therefor,  when  used  *n  the  discharge  of  the  officer's  official 
tiuties,  might  be  paid  for  from  the  appropriation  for  the  transporta- 
tion of  the  Army  and  its  supplies. 

(Comp.  of  the  Treas.,  Apr.  15,  1913.) 


TRANSPORTATION:   Of  the  Army;  Street  car  fares  for  a  funeral   escort 
furnished  on  request  of  a  private  organization. 

On  request  by  the  president  of  a  private  organization  to  the  com- 
manding officer  at  Fort  Howard,  Md.,  for  an  escort  for  a  deceased 
sergeant  of  the  Army,  retired,  who  was  a  member  of  said  organiza- 
tion, he  was  informed  that  no  provision  was  made  for  the  trasporta- 
tion  of  such  an  escort;  but  the  latter  stated  that  he  would  pay  the 
expense  of  transportation  and  take  up  the  question  of  reimbursement 
later.  Eight  dollars  were  expended  in  car  fares  for  the  transporta- 
tion of  said  escort.  The  commanding  officers  of  certain  forts  had 
been  instructed  to  furnish  funeral  escorts  without  further  authority, 
but  this  particular  fort  was  not  included  among  the  number. 

On  claim  for  reimbursement  of  the  amount  expended  for  car  fares, 
Iteld.,  that  the  correspondence  indicated  that  the  military  escort  was 
sent  from  Fort  Howard  on  the  understanding  that  the  expense  at- 
tending its  movement  would  be  borne  by  the  commander  of  the 
organization  requesting  it,  and  that  reimbursement  for  such  expend- 
iture was  not  authorized. 

(Comp.  of  the  Treas.,  Apr.  21,  1913.) 


TRAVEIi  ALIiOWANCES:  On  dischage;  transportation  over  a  longer  route 
at  less  expense  than  over  a  shorter  one. 

The  question  was  submitted  by  the  Secretary  of  the  Navy  as  to 
whether  a  marine,  discharged  from  the  service  and  not  electing  to 
i-eceive  mileage  instead  of  transportation  in  kind  and  subsistence, 
might  be  transported  to  his  place  of  enlistment  over  a  longer  route 
although  at  less  expense  than  over  a  more  expensive  shorter  one. 


DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL.        205 

The  Army  appropriation  act  of  August  24,  1912  (37  Stat.,  576), 
provides  that — 

"  When  an  enlisted  man  is  discharged  from  the  service,  except  by 
way  of  punishment  for  an  offense,  he  shall  be  entitled  to  tranporta- 
tion  in  kind  and  subsistence  from  the  place  of  his  discharge  to  the 
place  of  his  enlistment,  *  *  *  or,  in  lieu  of  such  transportation 
and  subsistence,  he  shall,  if  he  so  elects,  receive  two  cents  a  mile,  ex- 
cept for  sea  travel,  from  the  place  of  his  discharge  to  the  place  of  liis 
enlistment." 

By  law  enlisted  men  of  the  Marine  Corps  are  entitled  to  the  same 
pay  as  enlisted  men  of  the  Army. 

Held,  that  if  a  soldier  elects  to  receive  mileage  instead  of  trans- 
portation in  kind  and  subsistence,  the  distance  for  which  mileage  is 
to  be  paid  should  be  computed  over  the  shortest  usually  traveled 
route ;  but  if  he  is  to  receive  transportation  in  kind  and  subsistence, 
and  the  cost  of  furnishing  the  same  over  the  official  or  shorter  route 
is  greater  than  over  the  longer  one,  it  is  the  legal  right  and  duty  of 
the  officer  issuing  the  transportation  to  issue  the  same  OAer  the  longer 
route. 

(Comp.  of  the  Treas.,  Apr.  11,  1918.) 


OPINIONS  OF  THE  ATTORNEY  GENERAL. 

(Digests  prepared  in  tlie  office  of  the  Judge  Advocate  General.) 

CONTRACTS:  Withdrawal  of  bids  before  acceptance. 

Certain  bids  for  the  purchase  of  copper  scrap,  located  on  the 
Isthmus  of  Panama,  were  to  be  opened  and  tabulated  in  Washington, 
and  were  then  to  be  referred  to  the  Isthmus  for  final  decision. 

Held,  that  a  bidder  on  a  Government  contract  can  not  withdraw 
his  bid  before  a  reasonable  time  is  allowed  the  Government  for  ac- 
ceptance after  the  opening  of  the  bids,  and  that  a  delay  of  seven 
days  before  notice  of  acceptance  was  not  unreasonable  as  a  matter 
of  law. 

(80  Opin.,  56.) 

EIGHT-HCUIl  LAW:  Construction  of  public  buildings. 

In  the  construction  of  public  buildings,  where  the  Government 
contracts  for  the  furnishing  of  the  materials  and  labor  as  well  as  for 
the  erection  of  the  building  but  the  purchases  of  the  materials  are 
made  directly  by  the  contractor  or  subcontractor. 

Held,  that  the  purchases  of  such  materials  by  the  contractor  or 
subcontractor  are  subject  to  the  exceptions  in  section  2  of  the  oiglit- 
hour  law  of  June  19,  1912  (37  Stat.,  188),  and  are  not  subject  to 
the  restrictions  of  said  act  in  regard  to  the  hours  of  labor  for  labor- 
ers and  mechanics  engaged  on  government  contracts. 

(30  Opin.,  133.) 

PURCHASE  OF  SUPPLIES:  For  the  executive  departments  and  establish- 
ments in  Washington;  service  outside  of  Washington. 

A  large  number  of  contracts  had  been  made  by  the  oflicers  <»f  tlu- 
Quartermaster  Corps  for  the  purchase  of  supplies  in  Washington. 


206  DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

D.  C,  for  Army  posts  therein  and  in  the  vicinity,  notwithstanding 
the  fact  that  the  same  classes  of  supplies  were  included  in  the  schedule 
published  by  the  General  Supply  Committee  for  the  fiscal  year  1913. 
It  was  understood  that  it  had  been  the  practice  of  the  Treasury 
Department  to  recognize  the  validity  of  such  contracts  where  it  ap- 
peared that  the  interests  of  the  Government  would  be  promoted 
thereby. 

Section  4  of  the  act  of  June  17,  1910  (36  Stat.,  531),  directs  that 
all  supplies  of  fuel,  ice,  stationery,  and  other  miscellaneous  supplies 
for  the  executive  departments  and  other  Government  establishments 
in  Washington,  when  the  public  exigencies  do  not  require  the  im- 
mediate delivery  of  the  article,  shall  be  advertised  and  contracted 
for  by  the  Secretary  of  the  Treasury  instead  of  by  the  several  de- 
partments or  establishments,  and  that  there  shall  be  a  general  supply 
committee  in  lieu  of  the  board  provided  for  by  section  3709,  Revised 
Statutes,  as  amended,  whose  duty  it  shall  be  under  the  direction  of 
the  Secretary  of  the  Treasury  to  make  an  annual  schedule  of  re- 
quired miscellaneous  supplies,  and  to  standardize  such  supplies,  etc. 

On  request  for  opinion  by  the  Secretary  of  the  Treasury  as  to  the 
scope  of  said  act,  held.,  that  although  the  practice  of  recognizing  the 
validity  of  such  contracts  was  not  inconsistent  with  the  statute,  said 
contracts  were  not  authorized  by  said  section  4  of  the  act  of  June  17, 
1910,  except  in  cases  where  the  exceptions  mentioned  in  the  law 
applied. 

(Opin.  of  Solic,  Apr.  1,  1913.) 


RETIRED    OFFICERS:     Employment    of,     as     superintendents    of    Indian 
Schools. 

Section  3679,  Revised  Statutes,  as  amended  by  section  3  of  the  act 
of  February  27,  1906  (34  Stat.,  48),  reads  as  follows: 

"  No  executive  department  or  other  Government  establishment  of 
the  United  States  shall  expend,  in  any  one  fiscal  year,  any  sum  in 
excess  of  appropriations  made  by  Congi*ess  for  that  fiscal  year,  or 
involve  the  Government  in  any  contract  or  other  obligation  for  the 
future  payment  of  money  in  excess  of  such  appropriations,  unless 
such  contract  or  obligation  is  authorized  by  law.  Nor  shall  any  de- 
partment or  any  officer  of  the  Government  accept  voluntary  service 
for  the  Government  or  employ  personal  service  in  excess  of  that  au- 
thorized by  law,  except  in  cases  of  sudden  emergency  involving  the 
loss  of  human  life  or  the  destruction  of  property.     *     *     *." 

Upon  consideration  of  the  question  of  whether  or  not  a  retired 
Army  officer,  receiving  upward  of  $2,500  per  annum,  could  be  em- 
ployed as  superintendent  of  an  Indian  school  or  agency  without 
additional  compensation  and  without  contravening  the  provisions  of 
said  section  as  amended — 

Held.,  that  a  retired  officer,  even  though  receiving  upward  of 
$2,500  per  annum,  might  be  employed  as  superintendent  of  an  Indian 
school  or  agency,  where  no  additional  compensation  is  allowed,  with- 
out contravening  the  provisions  of  said  section  as  amended. 

Held  further.,  that  the  words  "  voluntary  service,"  as  employed  in 
the  above-mentioned  act,  were  not  intended  to  cover  services  rendered 
in  an  official  capacity  under  regular  appointment  to  an  office  other- 
wise permitted  by  law  to  be  nonsalaried. 

(30  Opin.,  51.) 


DIGEST   OF   OPINIONS  OF   THE   JUDGE   ADVOCATE   GENEBAL.       207 

DECISIONS  OF  THE  COUKTS. 
(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

CONTRACTS:  Liquidated  damages;  time  of  completion. 

A  contract  was  entered  into  to  furnish  all  material  and  laljor  for 
the  construction  of  a  coal-storing  plant  to  be  completed  within  12 
calendar  months  from  the  date  or  the  contract,  with  a  provision  for 
the  payment  of  liquidated  damages  for  delay  beyond  the  period 
fixed.  It  contained  a  provisicm  for  additions  of  certain  units  to 
the  plant  at  a  specified  unit  price,  it  being  contemplated  at  the  time 
that  Congress  would  appropriate  more  money,  and  that  in  such 
event  the  plant  would  be  increased  by  the  addition  of  such  iniits. 
Congress  made  the  appropriation,  and  additional  units  were  ordered, 
amounting  to  much  more  than  the  original  work.  No  provision  was 
made  for  an  extension  of  the  time  of  completion  on  account  of  such 
additions.  Delays  were  occasioned  by  the  fault  of  the  (jovernment 
in  commencing  the  w^ork,  but  the  same  was  carried  to  completion 
with  reasonable  diligence  by  the  contractor. 

Held^  that  where  a  building  owner  delays  the  contractor,  tlie  for- 
mer can  not  enforce  a  time-limit  stipulation  for  the  completion  of 
the  work,  but  his  conduct  waives  the  same,  giving  the  contractor  a 
reasonable  time  in  which  to  complete  the  work;  that  the  delay  of 
the  Government  in  providing  a  site  for  the  commencement  of  this 
work  prevented  the  application  of  the  provision  for  liquidated  dam- 
ages; and  that  it  was  evident  that  the  limitation  was  intended  to 
apply  only  to  the  original  work,  and  not  to  the  extensions  then  un- 
known to  the  parties.  Judgment  was  therefore  rendered  for  the 
amount  of  the  liquidated  damages,  which  had  been  retained. 

{Smith  V.  United  States,  Ct.  of  Cls.,  No.  29849,  Mar.  24,  1913.) 


ENLISTMENT:  Of  a  minor  without  consent  of  his  parent  or  guardian; 
habeas  corpus  proceedings  while  held  in  confinement  preparatory  to 
delivery  to  the  military  authorities  as  a  deserter. 

A  minor  who  enlisted  in  the  Army  without  the  consent  of  his 
parent  or  guardian  deserted,  was  arrested  while  in  desertion,  and 
was  being  held  for  delivery  to  the  military  authorities,  \^^lile  so 
held,  a  writ  of  habeas  corj)iis  was  sued  out  by  himself  and  his  motlu'.r 
jointly,  claiming  his  release  on  the  ground  of  minority. 

Held,  that  a  minor  enlisting  without  the  consent  of  his  parents  or 
guardian  becomes  a  de  jv/re  soldier,  and  on  his  desertion  from  tlio 
service  and  subsequent  arrest,  and  while  being  held  for  delivery 
to  the  military  authorities  for  such  offense,  he  is  not  entitled  to  he 
released  ui^on' habeas  corpm,  either  upon  his  own  application  or  tlint 
of  his  parent.  Held  further,  in  this  case,  that  the  mother  of  the 
soldier,  having  known  of  his  enlistment  for  some  time  and  not  hav- 
ing taken  any  steps  to  have  him  released  from  his  enlistinent  vir- 
tuallv  ratified  said  enlistment,  and  her  application  for  his  discharge 
after  he  had  deserted  from  the  service  and  had  been  arrested  tor  tlie 
offense,  should  for  this  reason  be  denied. 
(Ex  parte  Dunakin,  202  Fed.  Rep.,  290.) 


208       DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 
INSUIlRECTIO]Sr  AND   MABTIAi  LAW. 

(Syllabi  by  the  court.) 

1.  Martal  law;  Declaration;  Power  of  governor. 

The  governor  of  the  State  of  West  Virginia  has  power  to  declare 
a  state  of  war  in  any  town,  city,  district,  or  county  of  the  State,  in 
the  event  of  an  invasion  thereof  by  a  hostile  military  force  or  an 
insurrection,  rebellion,  or  riot  therein,  and,  in  such  case,  to  place 
such  town,  city,  district,  or  county  under  martial  law. 

[Ed.  note. — For  other  cases,  see  Insurrection,  Cent.  Dig.,  sec  5; 
Dec.  Dig.,  sec.  5.*] 

2.  state  sovereignty;  Constitutional  guaranties;  Habeas  corpus. 

The  constitutional  guaranties  of  subordination  of  the  military  to 
the  civil  power,  trial  of  citizens  for  offenses  cognizable  by  the  civil 
courts  in  such  courts  only,  and  maintenance  of  the  writ  of  habeas 
coTyus,  are  to  be  read  and  interpreted  so  as  to  harmonize  with  other 
provisions  of  the  Constitution  authorizing  the  maintenance  of  a 
military  organization,  and  its  use  by  the  executive  to  repel  invasion 
and  suppress  rebellion  and  insurrection,  and  the  presumption  against 
intent  on  the  part  of  the  people,  in  the  formulation  and  adoption  of 
the  Constitution,  to  abolish  a  generally  recognized  incident  of  sov- 
ereignty, the  power  of  self-preservation  in  the  State  by  the  use  of  its 
military  power  in  cases  of  invasion,  insurrection,  and  riot. 

[Ed.  note. — For  other  cases,  see  Insurrection,  Cent.  Dig.,  sec.  5; 
Dec.  Dig.,  sec.  5.*] 

3.  Constitutional  law;  Declaration;  Review  by  courts. 

It  is  within  the  exclusive  province  of  the  executive  and  legislative 
departments  of  the  government  to  say  whether  a  state  of  war  exists, 
and  neither  their  declaration  thereof,  nor  executive  acts  under  the 
same,  are  reviewable  by  the  courts,  while  the  military  occupation 
continues. 

[Ed.  note. — For  other  cases,  see  Constitutional  Law,  Cent.  Dig,, 
sees.  125-127;  Dec.  Dig.,  sec.  68.*] 

4.  Military  commission;  Trial  of  offense. 

The  authorized  application  of  martial  law  to  territory  in  a  state 
of  war  includes  the  power  to  appoint  a  military  commission  for  the 
trial  and  punishment  of  offenses  within  such  territory. 

[Ed.  note. — For  other  cases,  see  Insurrection,  Cent.  Dig.,  sec.  5; 
Dec.  Dig.,  sec.  5.*] 

5.  Martial  law;  Power  of  courts. 

Martial  law  may  be  instituted,  in  case  of  invasion,  insurrection,  or 
riot,  in  a  magisterial  district  of  a  county,  and  offenders  therein  pun- 
ished by  the  military  commission,  nortwithstanding  the  civil  courts 
are  open  and  sitting  in  other  portions  of  the  county. 

[Ed.  note. — For  other  cases,  see  Insurrection,  Cent.  Dig.,  sec.  5; 
Dec.  Dig.,  sec.  5.*] 

6.  Martial  law;  Military  commission;  Offenses. 

Acts  committed  in  a  short  interim  between  two  military  occupa- 
tions of  a  territory  for  the  suppression  of  insurrectionary  and  riotous 


DIGEST  OF   OPINIONS  OF   THE    JUDGE   ADVOCATE   GENERAL.       209 

uprisings,  and  such  in  their  general  nature  as  those  characterizing 
the  uprising,  are  punishable  by  the  military  commission  within  the 
territory  and  period  of  the  military  occupation. 

[Ed.  note. — For  other  cases,  see  Insurrection,  Cent.  Dig.,  sec.  5: 
Dec.  Dig.,  sec.  5.*] 

Robinson,  J.,  dissenting. 

{State  V.  Broivn,  77  S.  E.  Rep.,  243,  Supreme  Court  of  Appeals  of 
West  Virginia.) 

NEUTRALITY   LAWS:    Exportation    of   arms   and   munitions   of   war   into 
American  countries  where  conditions  of  domestic  violence  exist. 

The  joint  resolution  of  March  14,  1912  (37  Stat,  630),  provides 
that,  whenever  the  President  shall  find  that  in  any  American  country 
conditions  of  domestic  violence  exist  which  are  promoted  by  arms 
or  munitions  of  war  procured  from  the  United  States,  and  shall 
make  proclamation  thereof,  it  shall  be  unlawful  to  "  export,"  excejit 
under  such  limitations  as  shall  be  prescribed  by  the  President,  any 
arms  or  munitions  of  war  from  any  place  in  the  United  States  to 
such  country,  until  otherwise  ordered  by  the  President,  lleld^  tliat 
the  word  "  export,"  w^as  limited  to  a  transportation  of  aiTns  or  muni- 
tions of  war  from  any  place  in  the  United  States  to  "  such  country  ; "' 
and  hence  a  charge  that  the  accused,  with  intent  to  export  munitions 
of  war  from  the  city  of  El  Paso,  Tex.,  to  a  place  in  Mexico,  in  viola- 
tion of  a  proclamation  by  the  President  pursuant  to  such  resolution, 
did  make  a  shipment  of  cartridges,  etc.,  by  transporting  them  on  his 
person  from  one  point  to  another  in  the  city  of  El  Paso,  did  not 
charge  a  violation  of  the  resolution. 

(united  /States  v.  Chavez,  199  Fed.  Rep.,  518.) 

Note. — The  above  decision  was  reversed  May  5,  1913  (Xo.  803, 
October  Term,  1912),  by  the  Supreme  Court  of  the  United  States, 
which  held  in  effect  that  the  term  "to  export"  as  used  in  said  reso- 
lution should  not  be  construed  in  its  strict  sense,  but  should  be  held 
to  include  any  shipment  of  the  prohibited  articles  within  the  limits 
of  the  United  States  with  intent  to  remove  them  to  the  foregn 
country  named  in  the  President's  proclamation,  although  such  ship- 
ment may  not  reach  the  country  for  which  it  was  destined. 


NEUTRALITY  LAWS:   Power   of   arrest   by  military   authorities   without 
probable  cause. 

A  Mexican  alien,  identified  with  the  revolution  prevailing  in  his 
country,  came  into  the  United  States,  and  while  there  was  by  order 
of  the  President  arrested  and  held  by  the  military  authorities  with- 
out trial  while  an  effort  was  being  made  to  show  that  he  was  in  the 
United  States  for  the  purpose  of  violating  the  neutrality  laws.  A 
writ  of  habeas  corpus  was  sued  out  to  secure  his  release  from  the 
custody  of  the  military  authorities. 

Held,  that  the  military  authorities  were  without  power  to  arrest 
the  petitioner  in  a  summary  manner,  and  hold  him  in  arrest  pending 
an  effort  to  show  that  he  was  in  the  United  States  for  the  pnrpost>  of 
violating  the  laws  thereof;  that  the  (U'der  directing  his  arrest  was 
void ;  and  that  he  was  entitled  to  his  discharge. 

(Ex  parte  Orozco,  201  Fed.  Rep.,  106.) 

93668°— 17 14 


BULLETIN  18. 

Bulletin  1  WAR  DEPARTMENT, 

No.  18.     J  Washington,  June  7,  1913. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  May,  1913,  and  of  certain  decisions 
of  the  Comptroller  of  the  Treasury,  is  published  for  the  information 
of  the  service  in  general. 
[2043902,  A.  G.  O.] 
By  order  or  the  Secretary  of  War  : 

LEONARD  WOOD, 
Major  Gerieraly  Chief  of  Staff. 
Official. 

H.  O.  S.  HEISTAND, 

Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ARMY:  Organization  of;  appointment  of  officers  in  the  Corps  of  Engineers: 

Section  5  of  the  act  of  (February  27,  1911  (36  Stat.,  957),  increased 
the  number  of  officers  in  the  Corps  of  Engineers  of  the  United  States 
Army,  and  provided  that  vacancies  in  the  gi'ade  of  second  lieu- 
tenant therein  should  thereafter  be  filled  by  promotions  of  cadets 
from  the  portion  of  the  Corps  of  Cadets  assigned  to  the  Engineer 
Corps,  and  that  the  remaining  vacancies  in  any  fiscal  year,  after 
such  promtions,  should  be  filled  from  civil  life  as  in  said  act  pro- 
vided. 

Held.,  that  an  officer  holding  a  commission  as  lieutenant  in  the  in- 
fantry of  the  Army  was  not  eligible  to  appointment  to  a  vacancy  in 
the  grade  of  second  lieutenant  in  the  Engineer  Corps  remaining  after 
the  portion  of  cadets  which  had  been  assigned  to  the  Engineer  Corps 
had  been  exhausted  in  filling  vacancies,  as  he  was  not  a  civilian. 

(6-226,  J.  A.  G.,  May  12,  1913.) 


AVIATION  DUTY:  Details  for;  when  additional  pay  begins. 

The  Army  appropriation  act  of  March  2,  1912   (37  Stat.,  705), 
provides  that  from  and  after  the  passage  of  said  act — 

"  The  pay  and  allowances  that  are  now  or  may  be  hereafter  fixed 
by  law  for  officers  of  the  Regular  Army  shall  be  increased  thirty- 
five  per  centum  for  such  officers  as  are  now  or  may  be  hereafter  de- 
tailed by  the  Secretary  of  War  on  aviation  duty:  Provided.,  That 
this  increase  of  pay  and  allowances  shall  be  given  to  such  officers 
only  as  are  actual  flyers  of  heavier  than  air  craft,  and  while  so  de- 
tailed." 
210 


DIGEST  OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       211 

Held^  that  the  date  of  the  officer's  first  flight  after  being  detailed 
to  this  duty  should  be  regarded  as  the  date  upon  which  his  increase  of 
pay  and  allowances  should  commence,  and  not  the  date  of  his  re- 
porting for  duty;  but  that  after  his  first  flight,  the  additional  pay 
should  not  cease  if  he  holds  himself  in  readiness  for  such  duty  and 
if,  through  no  fault  of  his  own,  no  flight  can  be  made  for  a  limited 
period. 

(72-181,  J.  A.  G.,  May  5,  1913.) 


BURIAL    EXPENSES:     Of    general    prisoners;     embalming-    remains    for 
shipment. 

On  application  for  opinion  as  to  whether  or  not  an}'  expense  was 
authorized  for  embalming  and  preparing  for  shipment  the  remains 
of  a  deceased  general  prisoner,  held^  that  there  was  no  appropria- 
tion under  the  control  of  the  War  Department  out  of  which  such 
expense  or  charges  for  shipment  to  relatives  of  the  remains  of  a 
general  prisoner,  could  be  paid,  and  that  the  ordinary  means  avail- 
able at  the  post  for  the  disposition  of  remains  of  deceased  prisoners 
should  be  availed  of. 

(80-400,  J.  A.  a.  May  22,  1913.) 


CLERKS  ANT>  EMPLOYEES:   In   the   executive   departments;   promotions 
and  demotions  in  the  classified  civil  service. 

Section  4  of  the  legislative,  executive,  and  judicial  appropriation 
act  of  August  23,  1912  (37  Stat.,  413),  provides  that: 

"  The  Civil  Service  Commission  shall,  subject  to  the  approval  of 
the  President,  establish  a  system  of  efficiency  ratings  for  the  classi- 
fied service  in  the  several  executive  departments  in  the  District  of 
Columbia  based  upon  records  kept  in  each  department  and  inde- 
pendent establishment  with  such  frequency  as  to  make  them  as 
nearly  as  possible  records  of  fact.  Such  system  shall  provide  a 
minimum  rating  of  efficiency  which  must  be  attained  by  an  em- 
ployee before  he  may  be  promoted;  it  shall  also  provide  a  ratiiig 
below  which  no  employee  may  fall  without  being  demoted;  it  shall 
further  provide  for  a  rating  below  which  no  employee  may  fall 
without  being  dismissed  for  inefficiency.  All  promotions,  demo- 
tions, or  dismissals  shall  be  governed  by  provisions  of  the  civd- 
service  rules     *     *     *." 

Held,  that  the  provision  "  all  promotions,  *  =-"  *  or  dismissals 
shall  be  governed  by  provisions  of  the  civil-service  rules,"  construed 
with  reference  to  other  provisions  with  which  it  is  associated,  was  not 
then  operative  and  would  become  effective  only  after  the  Civil  Serv- 
ice Commission  had  established,  with  the  approval  of  the  I  resident, 
a  system  of  efficiency  ratings  for  the  classified  service  m  the  several 
executive  departments  in  the  District  of  Columbia. 

(6-112,  J.  A.  G.,  May  10,  1913.) 


CONTRACTS:  Employment  of  alien  labor  upon  Government  work. 

A  part  of  the  work  for  the  construction  of  a  water  system  at 
Schofield  Barracks,  Hawaii,  was  let,  after  advertisement,  to  a  com- 
pany which  sublet  the  work  of  constructing  the  ditch,  or  a  portion 


212        DIGEST   OF   OPINIONS   OF    THE   JUDGE    ADVOCATE   GENEEAL. 

of  it,  to  Japanese  laborers.  The  contract  did  not  contain  any  restric- 
tion against  the  employment  of  alien  laborers. 

Ileld^  that  there  was  no  law  requiring  or  permitting  a  provision  in 
contracts  forbidding  the  employment  of  alien  labor,  and  in  the  ab- 
sence of  legislation  giving  such  authority  the  Secretary  of  War  was 
without  authority  to  impose  such  a  requirement.  Dig.  Ops.  J.  A.  G., 
1912,  p.  373. 

(76-712,  J.  A.  G.,  May  15,  1913.) 


CONTRACTS:   Bid  and  acceptance;  set-off;  considering  bids  received  after 
hour  of  opening. 

The  purchasing  commissary  at  New  York  City  by  bid  and  ac- 
ceptance agreed  with  a  company  to  purchase  certain  amounts  of 
vegetables  for  the  month  of  May,  1913,  but  the  company  failed  to 
make  deliveries  in  pursuance  of  said  bid  and  acceptance,  except  for 
a  limited  quantity,  necessitating  the  purchase  in  open  market  of  a 
quantity  of  vegetables  at  advanced  prices  in  order  to  make  up  the 
deficiency.  It  was  desired  to  set-off  the  additional  cost  against  an 
amount  due  from  the  Government  to  the  same  company  under  a  con- 
tract for  furnishing  meat,  vegetables,  fruit,  etc.,  to  ships  of  the  Navy 
Department. 

Held^  that  the  mere  proposal  by  a  bidder  and  an  acceptance  by  a 
Government  officer  did  not  operate  as  a  contract,  as  this  did  not 
amount  to  a  compliance  within  section  3744,  Revised  Statutes,  which 
requires  that  every  contract  made  by  the  Secretary  of  War  on  behalf 
of  the  United  States  shall  be  reduced  to  writing  and  signed  by  the 
parties  thereto  at  the  end  thereof,  and  that  consequently  the  differ- 
ence in  cost  could  not  be  set  off  against  the  amount  which  might  be 
due  said  company  under  its  contract  with  the  Navy  Department,  nor 
could  any  action  be  taken  to  compensate  the  Government  for  the 
loss. 

(76-742,  J.  A.  G.,  May  25,  1913.) 

Two  bids  were  received  in  response  to  an  advertisement  for  bids 
on  a  Government  contract  after  the  hour  fixed  for  opening  such 
bids,  both  of  which  appeared  by  postmarks  thereon  to  have  been 
mailed  in  sufficient  time  to  have  reached  the  place  of  opening  the 
bids  by  the  hour  appointed  for  that  purpose,  although  the  margin 
allowed  was  small. 

Held^  that  these  cases  might  be  regarded  as  coming  within  the 
terms  of  paragraph  547,  Army  Eegidations,  1910,  as  amended,  but 
that  even  if  it  be  considered  that  the  time  allow^ed  was  too  short,  the 
facts  would  warrant  a  waiver  of  the  regulation  and  a  consideration 
of  the  bids  along  with  the  others,  as  it  was  clear  that  the  bidders 
could  not  have  been  given  any  unfair  advantage  by  such  delay  in 
receiving  the  bids. 

(76-251,  J.  A.  G.,  May  31,  1913.) 


EIGHT-HOUR  LAW:   Contract  to  be  performed  in  Alaska;  extraordinary 
emergency  and  extraordinary  conditions. 

The  Government  entered  into  a  preliminary  agreement,  subject  to 
the  approval  of  the  Chief  Signal  Officer  of  the  Army,  for  the  recon- 


DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL.       213 

struction  of  a  portion  of  the  Washington- Alaska  Military  Cable  and 
Telegraph  System.  The  specifications  called  for  the  delivery  of  cer- 
tain wooden  poles  which  w^ere  to  be  set  into  the  ground  and  each 
supported  by  three  braces  in  the  form  of  a  tripod,  both  poles  and 
braces  to  be  furnished  and  placed  in  position  by  the  contractor. 
Payments  were  to  be  made  as  follows : 

(a)  Upon  the  delivery  of  braces  at  points  where  poles  and  tripods 
are  to  be  set  and  the  acceptance  of  the  same  in  lots  of  2,000  or  more, 
at  the  rate  of  75  cents  per  brace. 

(b)  Poles  and  tripods  when  set  as  per  specification  will  be  ac- 
cepted in  lots  of  500  or  more,  and  when  accepted  will  be  i)aid  for 
at  the  rate  of  75  cents  per  tripod. 

(c)  Clearance  of  right  of  way  will  be  paid  for  upon  final  settU'- 
ment  and  completion  of  the  contract,  and  will  be  incluiled  in  the 
final  payment  upon  acceptance  of  the  entire  work  of  reconstruction. 

On  application  for  opinion  as  to  whether  or  not  the  provisions  of 
the  eight-hour  law  applied,  and  as  to  whether  the  contract  should 
contain  the  stipulation  required  by  the  act  of  June  19,  l'J12  i'M 
Stat.,  137), 

Held,  that  the  purchase  of  braces  and  their  transportation  to  the 
places  where  they  were  to  be  set  up,  fell  within  the  following  pro- 
vision of  the  second  section  of  the  act  of  June  19,  1912: 

"  That  nothing  in  this  act  shall  apply  to  contracts  for  transporta- 
tion by  land  or  water  *  *  *  or  for  the  purchase  of  supplies  by 
the  Government,  whether  manufactured  to  conform  to  particular 
specifications  or  not;"  but  that  the  work  of  placing  the  poles  and 
braces  in  position  and  of  clearing  the  right  of  way  was  subject  to 
the  provisions  both  of  the  act  of  August  1,  1892  (27  Stat.,  340),  and 
the  said  act  of  June  19,  1912. 

Held  further,  that  the  officer  in  charge  of  the  work  was  in  the  best 
position  to  judge  as  to  whether  or  not  an  extraordinary  emergency 
sufficient  to  excuse  noncompliance  with  the  former  act,  or  extraordi- 
nary conditions  sufficient  to  excuse  noncompliance  with  the  latter 
act,  existed  in  any  particular  case,  and  his  honest  and  reasonable 
decision  would  not  likely  be  reversed. 

(32-300,  J.  A.  G.,  May  17,  1913.) 


EIGHT-HOUR  LAW:  Purchase  of  supplies;  remodeling  projectile  hoists; 
water  and  electric  lights;  stevedoring'. 

Section  1  of  the  act  of  June  19,  1912  (37  Stat.,  137) ,  prescribed  that 
every  contract  made  for  or  on  behalf  of  the  Government  mvolviug 
the  employment  of  laborers  or  mechanics  shall  contain  a  provisu)n 
that  no  such  laborer  or  mechanic  doing  any  part  of  the  work  contem- 
plated by  the  contract  shall  work  more  than  eight  hours  m  any  ouc 
calendar  day,  with  a  provision  for  exacting  a  penalty  tor  violation 
of  the  act.  Section  2  excepts  from  the  general  proxisions  ot  the  law 
contracts,  among  others —  .      ,    ^i 

"For  the  purchase  of  supplies  by  the  Government,  whether  manu- 
factured to  conform  to  particular  specifications  ()r  not.  or  lor  sucli 
materials  or  articles  as  may  usually  be  bought  i"  ^P^"  "^^^^"'Vf '  f"^- 
cept  armor  and  armor  plate,  whether  made  to  conform  to  paiticulai 

specifications  or  not." 


214        DIGEST   OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL. 

It  was  desired  to  purchase  new  parts  for  and  to  remodel  a  number 
of  projectile  hoists  installed  on  the  Pacific  coast  and  in  the  insular 
possessions  so  as  to  adapt  them  to  the  longer  type  of  projectile  to  be 
furnished  by  the  Ordnance  Department,  by  removing  certain  car- 
riers therefrom  and  shipping  them  to  a  certain  point  to  be  modified 
by  substituting  new  parts  and  remodeling  old  parts. 

Held,  that  there  appeared  to  be  no  certain  point  where  a  projec- 
tile hoist  is  differentiated  from  like  machinery  in  general,  and  hence 
the  same  might  be  considered  as  an  article  which  could  be  pur- 
chased in  the  open  market ;  held  further,  that  the  contemplated  work 
comprising  the  remodeling  of  certain  parts,  might  be  regarded  in 
effect  as  a  purchase  of  the  remodeled  article,  and  that  such  work 
fell  within  the  exception  of  the  law  the  same  as  the  original  article. 

(32-300.  J.  A.  G.,  May  2,  1913.) 

It  was  contemplated  to  enter  into  contracts  for  supplying  water 
at  certain  forts  and  electric  light  at  an  Army  post. 

Held,  that  water  and  electric  light  were  supplies  within  the  meaning 
of  section  2  of  the  eight-hour  law  of  June  19,  1912  (37  Stat.,  137), 
which  excepts,  among  other  things,  contracts  for  the  purchase  of 
supplies  from  the  operation  of  the  general  provisions  of  the  act, 
and  that  such  contracts  need  not  contain  the  eight-hour  stipulation. 

(76-720,  J.  A.  G.,  May  9  and  14,  1913.) 

An  opinion  was  desired  as  to  whether  it  was  necessary  to  include 
in  the  conditions  for  bidders  for  stevedoring.  United  States  Army 
transports,  a  reference  to  the  act  limiting  the  daily  service  of 
laborers,  and  whether  the  same  was  also  necessary  in  inviting  pro- 
posals for  loading  and  trirmning  coal  furnished  by  contractors  on 
board  transports. 

Hel'd,  that  contracts  of  the  character  mentioned  could  not  be  re- 
garded as  contracts  for  transportation  within  the  meaning  of  that 
word  as  used  in  section  2  of  the  act  of  June  19,  1912  (37  Stat.,  137), 
and  that  said  contracts  came  within  the  general  provisions  of  said 

(32-300,  J.  A.  G.,  May  28,  1913.) 


EIGHT-HOUR    LAW:    Expenditure    of    money    contributed    by    private 
parties. 

Section  1  of  the  river  and  harbor  act  of  March  4,  1913  (37  Stat., 
819),  authorizes  the  Secretary  of  War  to  use  any  additional  moneys 
that  may  be  placed  at  his  disposal  by  the  Port  of  Coos  Bay,  Oreg., 
or  by  any  other  organization  or  by  individuals  for  the  improvement 
of  the  inner  harbor  of  the  bay  at  said  place,  and  section  8  of  said  act 
(idem.,  827)  provides: 

"  That  the  Secretary  of  War  is  hereby  authorized  to  receive  from 
private  parties  such  funds  as  may  be  contributed  by  them  to  be  ex- 
pended in  connection  with  funds  appropriated  by  the  United  States 
for  any  authorized  work  of  public  improvement  of  rivers  and  har- 
bors, whenever  such  work  and  expenditure  may  be  considered  by  the 
Chief  of  Engineers  as  advantageous  to  the  interests  of  navigation." 

Held,  that  in  expending  money  contributed  by  the  Port  of  Coos 
Bay,  Oreg.,  or  by  other  parties,  in  dredging  the  inner  channels  of  the 


DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       215 

harbor  at  that  place,  the  work  must  be  prosecuted  in  compliance 
with  the  eight-hour  law  of  August  1,  1892  (27  Stat.,  340),  as  amended 
by  the  act  of  March  3,  1913  (37  Stat.,  726). 
(32-213.1,  J.  A.  G.,  May  2,  1913.) 


EIGHT-HOTm    LAW:    Extraordinary    emergency;    mobilization    camp    at 
Galveston,  Tex. 

On  February  21  and  24,  1913,  the  Second  Division  of  the  Army  was 
ordered  to  mobilize  at  Galveston,  Tex.,  and  it  was  necessary  to 'make 
preparations  for  caring  for  the  troops  while  stationed  in  tliat  locality. 
Some  of  the  troops  were  en  route  at  the  time  the  officer  designated 
to  make  these  preparations  had  reached  the  vicinity  of  Galveston, 
and  certain  classes  of  work  had  to  be  done  quickly.  This  work  was 
contracted  for,  and  consisted  of  three  classes,  viz,  arranging  for 
water,  building  latrines,  and  building  bridges.  It  appeared  that  the 
work  could  not  have  been  completed  in  time  by  working  the  available 
force  of  laborers  and  mechanics  only  eight  hours  per  day,  and  they, 
in  fact,  performed  labor  in  excess  of  said  limit. 

Held^  that  the  situation  might  be  regarded  as  constituting  an  occa- 
sion of  extraordinary  emergency  or  condition  within  the  me^aning 
of  the  statutes  limiting  the  employment  of  labor  to  eight  hours  per 
day  on  Government  work,  which  would  justify  the  employment  of 
laborers  and  mechanics  for  more  than  eight  hours  per  day. 

(32-232,  J.  A.  G.,  May  20,  1913.) 


GRATUITY:   On  death,  of  soldier;  to  whom  payable;  estate  of  deceased. 

The  act  of  May  11,  1908  (35  Stat.,  108),  as  amended  by  the  act  of 
March  3,  1909  (35  Stat.,  735),  provides  for  the  payment  of  a  gratu- 
ity equal  to  six  months'  pay  to  the  widow  of  an  officer  or  of  an  en- 
listed man  dying  in  the  service  from  wounds  or  disease  not  the  result 
of  his  own  misconduct,  or  "  to  any  other  person  previously  designated 
by  him,"  and  further  provides  that — 

"  The  Secretary  of  War  shall  establish  regulations  requiring  each 
officer  and  enlisted  man  to  designate  the  proper  person  to  whom  this 
amount  shall  be  paid  in  case  of  his  death." 

Tleld^  that  the  designation  of  an  estate,  Avhether  the  estate  of  the 
designator  or  the  estate  of  another,  is  not  contemplated  by  the 
statute. 

(42-140,  J.  A.  G.,  May  22,  1913). 


GRATUITY:   On  death  of  soldier;  forfeiture  by  desertion. 

A  soldier  absented  himself  without  leave  June  10,  1912,  at  Alcatraz 
Island,  Cal,  and  was  apprehended  March  12,  1913,  and  delivered 
to  the  military  authorities  at  Jefferson  Barracks,  Mo.  He  was  ad- 
mitted to  the  post  hospital  at  Jefferson  Barracks  on  March  20,  1913, 
and  died  in  said  hospital  March  31  following,  from  a  disease  sup- 
posed to  have  been  incurred  during  his  absence,  but  not  incurred 
through  misconduct. 

There  was  every  indication  to  show  that  the  sohlier  nitcn.lo.l  to 
desert  the  service,  and  no  steps  had  been  taken  by  the  Government 


216   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

looking  to  his  restoration  to  duty.  The  act  of  May  11,  1908  (35 
Stat.,  108),  as  amended  by  the  act  of  March  3,  1909  (35  Stat.,  735), 
allows  to  the  widow  of  a  soldier  or  enlisted  man  dying  in  the  service 
of  wounds  or  disease  not  the  result  of  his  own  misconduct,  or  to  any 
other  person  previously  designated  by  him,  an  amount  equal  to 
six  months'  pay  received  by  him  at  the  date  of  his  death,  subject 
to  certain  deductions. 

Held,  that  a  soldier  deserting  the  service  repudiates  his  enlist- 
ment contract,  and  can  not  in  that  status  claim  pay  or  allowances 
due  him  under  said  contract;  that  the  facts  in  this  case  justified  an 
administrative  finding  of  desertion;  and  that  by  such  desertion 
all  right  to  this  benefit  was  forfeited. 

(42-100,  J.  A.  G.,  May  1,  1913.) 


INTOXICATING    LIQUORS:   Shipment    into    a    State    and    sale    therein 
contrary  to  the  laws  of  such  State. 

The  act  of  March  1,  1913  (37  Stat.,  699),  known  as  the  Webb  law, 
forbids  the  shipment  into  any  State  of  any  "  spirituous,  vinous, 
malted,  fermented,  or  other  intoxicating  liquor  of  any  kind  "  and 
their  sale  or  use  therein,  in  violation  of  any  law  of  such  State. 

The  laws  of  the  State  of  Oklahoma  (sec.  4007,  Gen.  Stat.,  1908) 
make  it  unlawful  to  "  manufacture,  sell,  barter,  give  away,  or  other- 
wise furnish,"  except  as  provided  in  said  act,  "  any  spirituous, 
vinous,  fermented  or  malt  liquors,"  or  to — 

"Manufacture,  sell,  barter,  give  away,  or  otherwise  furnish  any 
liquors  or  compounds  of  any  kind  or  description  whatsoever,  whether 
medicated  or  not,  which  contain  as  much  as  one-half  of  one  per 
centum  of  alcohol,  measured  by  volume,  and  which  is  capable  of  be- 
ing used  as  a  beverage,  except  preparations  compounded  by  any 
licensed  pharmacist,  the  sale  of  which  would  not  subject  him  to  the 
payment  of  the  special  tax  required  by  the  laws  of  the  United  States." 

Held,  that  as  a  post  exchange  is  a  recognized  agency  of  the  Gov- 
ernment, it  is  not  within  the  province  of  any  State  to  regulate  the 
sale  of  any  intoxicating  liquors  therein,  but  that  such  sale  is  gov- 
erned by  section  38  of  the  act  of  February  2,  1901  (31  Stat.,  758), 
and  that  it  is  the  duty  of  the  Secretary  of  War,  regardless  of  State 
laws,  to  determine  what  liquors  are  intoxicating  within  the  mean- 
ing of  said  act.  Advised  further,  that  as  a  matter  of  policy  no  liquor 
should  be  permitted  to  be  sold  in  a  post  exchange  within  a  prohi- 
bition Stat«,  the  sale  of  which  is  forbidden  by  the  laws  of  such 
State. 

(48-110,  J.  A.  G.,  May  14,  1913.) 


MILITARY  RESERVATIONS:   Relocation  of  a  right  of  way  for  a  rail- 
road; power  of  the  Secretary  of  War. 

By  act  of  April  27,  1912  (37  Stat.,  92),  Congress  granted  to  a  rail- 
road company  the  right  to  survey,  locate,  and  construct  a  railway 
through  a  military  reservation  "  upon  such  a  line  as  may  be  deter- 
mined and  approved  by  the  Secretary  of  War,"  and  further  pro- 
vided that  before  said  company  should  be  permitted  to  enter  upon 


DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       217 

the  reservation  "  a  description  by  metes  and  bounds  of  the  lands 
herein  authorized  to  be  taken  shall  be  approved  by  the  Secretary 
of  War." 

A  right  of  way  was  surveyed  and  a  description  by  metes  and 
bounds  of  the  lands  proposed  to  be  occupied  was  approved  by  the 
Secretary  of  War  according  to  the  provisions  of  said  act.  It  after- 
wards appeared  that  the  lands  approved  for  station  purposes  and 
sidings  were  disadvantageously  located  for  Governniont  purj)oses. 

Held^  that  the  Secretary  of  War,  in  approving  the  location  as 
surveyed  and  described  by  metes  and  bounds,  had  exhausted  his 
powers  and  could  not  subsequently  approve  a  different  l<Kati<>n 
without  authority  of  Congress;  held  fwnther^  that  neither  a  revocable 
license  nor  a  lease  under  the  act  of  July  28,  1892  (27  Stat,  321), 
could  be  given  for  such  purposes,  as  the  same  necessarily  contem- 
plated an  occupancy  of  a  permanent  nature.    21  Op.  Atty.  Gen.,  r»37. 

(80-624,  J.  A.  G.,  May  1,  1913.) 


MILITIA:   Of  the  District  of  Columbia;  residence  within  the  District. 

The  act  of  March  1,  1889,  for  the  organization  of  the  Militia  of 
the  District  of  Columbia,  provides  (25  Stat.,  772)  : 

"That  every  able-bodied  male  citizen  resident  within  the  Dis- 
trict of  Columbia,  of  the  age  of  eighteen  years  and  under  the  age  of 
forty-five  years,     *     *     *     shall  be  enrolled  in  the  militia     *     *     *.*' 

The  question  having  arisen  as  to  the  meaning  of  the  words  "  resi- 
dent therein  "  as  applied  to  employees  of  the  District  of  Columbia 
and  of  the  several  Federal  departments  therein — 

Ileld^  that  the  period  of  enlistment  in  the  National  Guard  of 
the  District  of  Columbia  having  been  fixed  by  Congress  at  three 
years,  employees  of  the  District  or  of  the  Federal  departments 
therein  are  eligible  to  enlistment  in  the  National  Guard  of  the 
District,  so  far  as  residence  is  concerned,  if  they  actually  have  their 
places  of  abode  in  the  District  and  intend  to  remain  there  indefi- 
nitely or  for  a  period  of  not  less  than  three  years  from  the  date  of 
enlistment. 

(58-811,  J.  A.  G.,  May  26,  1913.) 


MILITIA:    Organization;   conformity  to  that  of  the  Regular  Army;   line 
and  staff. 

Section  3  of  the  militia  act  of  Januarv  21,  1903  (32  Stat..  775),  as 
amended  by  section  2  of  the  act  of  May  27,  1908  (35  Stat,  399), 
provides  inter  alia  that — 

"  On  and  after  January  21,  1910,  the  organization,  armament,  an.l 
discipline  of  the  Organized  Militia  in  the  Several  States  and  Ter- 
ritories and  ih^  District  of  Columbia  shall  be  the  sjune  as  that  which 
is  now  or  may  hereafter  be  prescribed  for  the  Regular  Army  of  the 
United  States,  subject  in  time  of  peace  to  such  general  exceptions  us 
may  be  authorized  by  the  Secretary  of  War.'' 

In  a  report  by  this  office  of  June  29,  1909  (C.  U148-F),  when  the 
requirements  of  section  1114,  Revised  Statutes,  prescribing  brigade 
and  division  organizations,  were  held  in  abeyance  as  provide.l   in 


218       DIGEST  OF   OPINIONS   OF    THE    JUDGE    ADVOCATE   GENERAL. 

said  section,  it  was  held  that  the  establishment  of  higher  commands 
than  regiments  of  the  Organized  Militia  was  left  to  the  discretion  of 
the  several  States,  so  long  as  the  military  commands  of  and  below 
regiments  conformed  to  the  organization  of  the  Regular  Army. 
Since  that  opinion  was  rendered,  regiilations  have  provided  for  the 
organization  of  the  Regular  Army  into  brigades  and  divisions  in 
time  of  peace  to  conform  to  the  war  organization  prescribed  by  law. 

Held^  that  section  3  of  the  act  of  January  21,  1903,  as  amended, 
contemplates  that  where  divisions  and  brigades  are  organized  in 
the  militia  of  any  State  they  shall  conform  to  the  corresponding 
organizations  in  the  Regular  Army,  and  that  such  organizations 
shall  extend  to  all  units  of  the  line  and  staff,  except  as  otherwise 
provided  by  the  statute. 

(58-210,  J.  A.  G.,  May  17,  1913.) 


MILITIA:   Pay  of  oflB.cer  in  Organized  Militia  who  is  also  a  retired  en- 
listed man  of  the  Regular  Army. 

A  quartermaster  sergeant,  United  States  Army,  retired,  who  had 
accepted  a  commission  in  the  Organized  Militia  of  a  State,  desired 
to  know  whether  he  could  draw  his  pay  as  an  officer  of  the  Organized 
Militia  while  engaged  in  field  or  camp  service  for  instruction,  as 
contemplated  by  section  14  of  the  present  militia  law  of  January  21, 
1903  (32  Stat.,  777),  and  also  his  retired  pay. 

Held^  that  there  is  no  Federal  statute  or  general  principle  of 
Federal  law  which  prohibits  a  retired  enlisted  man  of  the  Regular 
Army,  who  is  also  a  commissioned  officer  of  the  Organized  Militia 
of  a  State,  from  receiving  pay  as  such  commissioned  officer  in  accord- 
ance with  the  provisions  of  section  14  of  the  militia  law,  as  well  as 
his  pav  as  a  retired  enlisted  man  of  the  Army. 

(88^931.  J.  A.  G.,  May  20,  1913.) 


OFFICIAL  RECOEDS:   Destruction  of,  at  oflice  of  a  depot  quartermaster. 

The  depot  quartermaster  at  Chicago,  111.,  requested  that  action 
be  taken  to  dispose  of  certain  records  of  the  Judge  Advocate's  De- 
partment stored  at  his  depot. 

The  act  of  February  16,  1889  (25  Stat.,  672),  as  amended  by  the 
act  of  March  2,  1895  "(28  Stat,  933),  provides  for  the  sale  or  dis- 
position of  files  of  papers,  not  of  permanent  value  or  historical 
interest,  that  have  accumulated  in  any  one  of  the  executive  depart- 
ments of  the  Government  or  "  in  the  various  public  buildings  under 
the  control  of  the  several  executive  departments  of  the  Government." 

Ueld^  that  this  makes  provision  for  the  disposition  of  records  on 
file  in  Washington,  but  as  the  quartermaster's  department  at  Chi- 
cago is  not  a  part  of  an  executive  department  within  the  meaning 
of  the  law,  the  records  in  this  case  can  not  be  disposed  of  in  pur- 
suance of  said  act.  There  is,  therefore,  no  authority  for  disposing 
of  these  records  unless  they  include  records  of  regimental,  garrison, 
or  summary  courts,  the  destruction  of  which  is  provided  for  by  the 
act  of  March  3,  1877  (19  Stat.,  310),  and  section  4  of  the  act  of 
June  18,  1898  (30  Stat,  483). 

(66-320,  J.  A.  G.,  May  6,  1913.) 


DIGEST  OF   OPINIONS  OF   THE   JUDGE   ADVOCATE   GENERAL.       219 

RESPONSIBILITY:   Disposition  of  unserviceable  property. 

Paragraph  1039,  Army  Regulations,  1910,  provides  that  china  and 
glass  ware  belonging  to  the  mess  outfit  of  a  military  organization 
changing  station  shall,  on  the  order  of  the  commanding  ollicer  of 
the  post  or  station,  be  inspected,  and  that  all  such  ware  wliich  is 
found  to  be  serviceable  shall  be  turned  over  to  the  quartermaster 
for  reissue,  and  all  found  to  be  unserviceable  shall,  after  the  author- 
ized allowance  of  5  per  cent  a  quarter  on  account  of  breakage  shall 
have  been  deducted,  be  destroyed  and  the  money  value  thereof 
charged  against  the  responsible  officer.  The  report  of  the  survey 
when  approved  by  the  commanding  officer  shall  be  final. 

An  inspection  of  china  and  glass  ware  of  a  company  was  ordered 
only  a  short  time  before  said  organization  changed  its  station,  and 
the  same  having  been  found  to  be  serviceable,  was  turned  over  to 
the  quartermaster  of  the  post  by  order  of  the  commanding  officer 
of  the  post,  who  approved  the  survey  as  required  by  regulation, 
although  the  report  thereof  was  imperfect.  Afterwards  a  board  of 
survey  appointed  for  the  purpose  found  similar  property  in  the 
hands  of  the  depot  quartermaster,  supposed  to  be  the  same  as  that 
which  had  been  turned  over  to  him,  unserviceable. 

Held,  that  under  the  circumstances  the  survey  ordered  by  the 
commanding  officer  and  approved  by  him  should  be  taken  as  final, 
and  that,  if  unserviceable  property  was  found  in  the  hands  of  the 
depot  quartermaster,  the  same  should  be  disposed  of  bv  him  in  the 
usual  manner  and  thereupon  he  should  be  relieved  from  further 
responsibility. 

(80^120,  J.  A.  G.,  May  31,  1913.) 


RETIRED   OEFICERS:   Active   duty  in   certifying  to   the   destruction    of 
worn-out  property. 

A  circular  of  the  Quartermaster's  Department  required  that  the 
certificate  of  the  accountable  officer  to  the  destruction  of  certain 
worn-out  expendable  property  issued  to  troops  should  be  .sup- 
ported by  the  certificate  of  a  disinterested  officer  to  the  effect  that 
the  property  had  been  destroyed  in  his  presence.  A  recruiting 
officer  of  the  Army  desired  to  know  whether  a  retired  officer  not 
on  active  duty  could  be  allowed  to  make  this  certificate  as  the  dis- 

lIltj6I*GStGQ  oillCBr.  * 

Held,  that  this  certificate  contemplated  the  performance  of  active 
duty  in  seeing  to  the  destruction  of  the  property,  to  which  duty  a 
retired  officer,  not  on  active  duty,  could  not  lawfully  be  assigned,  and 
therefore  such  an  officer  could  not  make  the  required  certificate. 

(88-500.  J.  A.  G.,  May  17,  1913.) 


SERVICES:  Gratuitous;  accepting  gratuitous  transportation  in  relieving 
flood  sufferers. 
Several  railway  companies  had  participated  in  the  mo\-ement  of 
a  special  train  from  Washington,  D.  C,  to  Cincinnati,  Ohio  for 
the  Secretary  of  War  and  party  in  connection  with  the  furnishing 
of  relief  to  sufferers  from  the  unusual  floods  in  the  latter  btute.  and 


220       DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

it  was  desired  to  know  whether  this  service,  which  was  rendered 
gratuitously,  could  lawfully  be  accepted  as  such. 

Section  3679,  Revised  Statutes,  as  amended  by  the  act  of  Feb- 
ruary 27,  1906  (34  Stat.,  40),  prohibits,  among  other  things,  the 
acceptance  of  "  voluntary  service  for  the  Government,"  but  excepts 
from  the  prohibition  "  cases  of  sudden  emergency  involving  the 
loss  of  human  life  or  the  destruction  of  property ;  "  and  section  1 
of  the  interstate-commerce  act,  in  prohibiting  common  carriers  from 
furnishing  free  passes  or  free  transportation,  contains  a  proviso  that 
the  prohibition  shall  not — 

"  Be  construed  to  prohibit  *  *  *  any  common  carrier  from 
carrying  passengers  free  with  the  object  of  providing  relief  in  cases 
of  general  epidemic,  pestilence,  or  other  calamitous  visitation." 

Ileld^  that  the  gratuitous  services  of  the  several  railway  companies 
in  furnishing  transportation  to  the  Secretary  of  War  while  assisting 
in  the  distribution  of  Government  relief  for  the  flood  sufferers,  might 
legally  be  accepted,  as  the  case  came  within  the  exceptions  of  the 
two  statutes  referred  to. 

(76-030,  J.  A.  G.,  May  10,  1913.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

CEMETERIES:    Marking     graves     of     Confederate     dead;     appropriation 
available. 

The  act  of  March  9,  1906  (34  Stat.,  56),  authorizes  the  Secretary 
of  War  to  ascertain  the  location  and  condition  of  graves  of  the 
soldiers  and  sailors  of  the  Confederate  Army  and  Navy  in  the  Civil 
War  who  died  in  Federal  prisons  and  military  hospitals  in  the  north 
and  who  were  buried  near  the  places  of  their  confinement,  and  to 
cause  to  be  erected  white  marble  headstones  over  the  same.  The 
act  of  August  24,  1912  (37  Stat.,  439),  appropriates — 

"  For  continuing  the  work  of  furnishing  headstones  of  durable 
stone  or  other  durable  material  for  unm.arked  graves  of  Union  and 
Confederate  soldiers,  sailors,  and  marines  " — 

in  national,  post  or  other  cemeteries  and  burial  places  under  the 
authority  of  various  acts  of  Cingress,  including  the  act  of  March  9, 
1906. 

Held.,  that  the  Secretary  of  War  under  said  appropriation  was 
authorized  to  furnish  headstones  for  unmarked  graves  of  Confed- 
erate soldiers  buried  in  national  cemeteries  as  provided  in  said  act 
of  March  9,  1906. 

(Comp.  of  the  Treas.,  May  13,  1913.) 


CLERKS  AND  EMPLOYEES:   Extra  compensation  to;   clerk  in   Quarter- 
master's Department  at  large. 

A  clerk  in  the  Quartermaster's  Department  at  large  was  in  receipt 
of  a  compensation  of  $1,000  per  annum  payable  from  the  appropria- 
tion for  "  Incidental  expenses,  Quartermaster's  Department "  of  the 


DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       221 


S 


Army  made  by  the  act  of  August  2-1,  1912  (37  Stats.  580)  Hi 
appointment  or  designation  was  made  by  the  authority  oi  the  Sec- 
retary of  War  and  the  amount  of  his  compensation  tletermined  in 
the  individual  case.  Wliile  so  employed  he  performed  extra  clerical 
services  for  the  post  laundry  by  keeping  the  b(K)ks.  ti-aciug  collec- 
tions, etc.  This  work  was  performed  outside  of  his  ollice  hours  and 
was  not  required  as  a  part  of  his  duties  as  clerk  in  the  Quartermas- 
ter's Department.  For  those  extra  services  it  was  proposed  to  pay 
him  $50  per  month  from  the  receipts  of  the  post  laundrv,  which 
amount  was  not  fixed  by  any  law  or  regulation. 

Held,  that  not  being  a  clerk  in  an  executive  department,  he  did  not 
come  within  the  prohibition  of  section  1764,  Kevised  Statutes,  for- 
bidding compensation  for  extra  services  to  a  clerk  in  such  depart- 
ment, and  not  being  an  officer  or  other  person  whose  salary  or  com- 
pensation is  fixed  by  law,  he  did  not  come  within  the  prohibition  of 
section  1765,  Revised  Statutes.  Held,  therefore,  that  there  was  no 
legal  objection  to  paying  the  additional  compensation  proposed. 

(Comp.  of  the  Treas.,  Apr.  16, 1913.) 


CONTRACTS:  Delay  in  approval;  delivery  after  time  specified  and  purchase 
in  open  market. 

A  contract  dated  September  17,  1912,  was  made  subject  to  the  ap- 
proval of  the  commanding  general  of  the  Central  Division,  but  was 
not  approved  by  him  until  November  5,  1912.  The  contractors  were 
required  by  the  contract  to  make  deliveries  of  hay  at  a  military  post 
at  such  time  and  in  such  quantities  as  the  receiving  officer  might 
direct  at  a  certain  price  for  October  deliveries  and  at  a  higher  price 
for  November  deliveries.  Purchases  were  made  in  open  market  at 
rates  higher  than  the  contract  price  to  make  up  for  short  deliveries 
during  the  month  of  November,  and  it  was  sought  to  charge  the  con- 
tractors the  difference  between  the  price  paid  and  the  contract  price 
for  deliveries  in  that  month. 

Held,  that,  as  the  contract  did  not  become  effective  until  approved, 
the  contractors  were  entitled  to  be  paid  for  all  hay  delivered  and 
accepted  in  November  at  November  prices,  although  delivered  in 
response  to  calls  intended  for  and  given  in  time  for  delivery  in  Octo- 
ber ;  /held  further,  that  the  contractors  could  not  be  considered  as  in 
default  on  any  deliveries  prior  to  the  approval  of  the  contract,  and 
could  not  be  charged  wdth  the  difference  in  cost  between  the  market 
price  which  the  Government  paid  and  the  contract  price  for  any 
purchases  made  to  cover  short  deliveries  prior  to  such  approval;  but 
that  it  appeared  from  the  facts  submitted  that  the  contractors  had 
had  sufficient  time  after  the  approval  of  the  contract  to  make  the 
deliveries  called  for  for  November  and  were  chargeable  with  such 
difference  in  cost  for  shortage  in  deliveries  which  should  have  been 
made  in  that  month. 

(Comp.  of  the  Treas.,  May  12,  1913.) 


PAY  OF  OFFICERS:  Officer  in  employ  of  foreign  Government  under  special 
authority  of  Congress;  awaiting  orders. 

An  officer  of  the  Army  was  by  joint  resolution  of  Congress  "per- 
mitted to  accept"  from  a  foreign  Government  the  position  of  m- 


222        DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL. 

structor  of  coast  artillery,  together  with  "  the  emoluments,  rights, 
and  privileges  pertaining  thereto."  On  submission  by  the  Auditor 
for  the  War  Department  of  an  original  construction  of  said  joint 
resolution — 

Held^  that  the  status  of  the  officer  while  so  employed  was  more 
nearly  allied  to  that  of  an  officer  on  waiting  orders  than  to  one  on 
leave  of  absence,  and  that  section  1265,  Revised  Statutes,  regarding 
leave  of  absence  was  not  applicable  to  the  case ;  held,  therefore,  that 
the  officer  while  so  engaged  was  entitled  to  the  full  pay  of  his  grade 
instead  of  his  pay  as  on  leave  of  absence.  (See  Op.  J.  A.  G.,  June 
15,  1912  (C.  29481).) 

(Comp.  of  the  Treas.,  May  1,  1913.) 


PRIVATE  PROPERTY:  Loss  of  horse;  delay  in  presenting  claim. 

The  act  of  March  3,  1885  (23  Stat.,  350),  directs  the  accounting 
officers  of  the  Treasury  to  examine  into  and  determine  the  value  of 
private  property  of  officers  and  enlisted  men  in  the  military  service 
lost  or  destroyed  under  certain  conditions,  and  provides  for  the  pay- 
ment of  the  same,  with  the  proviso  that  all  claims  then  existing  should 
be  presented  "  within  two  years  and  not  after  "  from  the  passage  of 
said  act,  and  that  all  such  claims  thereafter  arising  should  be  pre- 
sented "  within  two  years  from  the  occurrence  of  the  loss  or  de- 
struction." 

An  officer's  horse  was  destroyed  on  March  6,  1911,  under  conditions 
claimed  to  have  been  such  as  to  entitle  him  to  reimbursement  for  the 
loss  under  said  act.  The  papers  relating  to  this  claim  were  received 
in  the  office  of  the  Quartermaster's  Department  on  December  20, 
1911,  and  on  the  next  day  were  returned  to  the  Adjutant  General 
recommending  reference  to  the  commanding  general  of  the  Philip- 
pine Division,  inviting  attention  to  the  decision  of  the  Comptroller 
of  the  Treasury  of  July  24,  1911  (18  Comp.  Dec,  47),  to  the  effect 
that  the  class  of  private  property  belonging  to  officers  and  enlisted 
men,  to  which  the  act  of  March  3, 1885,  relates,  does  not  include  horses 
belonging  to  officers  in  the  military  service  and  that  the  accounting 
officers  of  the  Treasury  had  no  jurisdiction  over  such  claims.  Had 
it  been  jmown  in  said  office  that  the  accounting  officers  of  the  Treas- 
ury had  jurisdiction  over  claims  for  horses  lost  by  officers  in  the 
military  service  this  claim  would  have  reached  the  Auditor  for  the 
War  Department  within  the  two  years  required  by  the  act.  The 
failure  to  reach  the  auditor's  office  in  time  occurred  through  no  fault 
of  the  officer.  The  claim  did  not,  in  fact,  reach  the  accounting  officers 
until  April  9, 1913,  or  more  than  two  years  after  the  loss  had  occurred. 

Held,  that  the  law  requires  that  all  such  claims  must  be  filed  with 
the  accounting  officers  within  two  years  from  the  occurrence  of  the 
loss  or  destruction,  and  that  the  filing  of  the  claim  in  the  War  Depart- 
ment within  such  period  is  not  a  filing  with  the  accounting  officers 
Avithin  the  meaning  of  the  act  (9  Comp.  Dec,  510)  ;  held  further, 
that  in  view  of  the  plain  provisions  of  the  act  the  comptroller  was 
not  at  liberty  to  consider  the  reasons  wh}'^  the  claim  was  not  presented 
to  the  accounting  officers  within  the  period  named  in  the  statute. 

(Comp.  of  the  Treas.,  May  17,  1913.) 


DIGEST  OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       223 

QUARTERS:  Commutation  of,  while  awaiting  sailing  of  a  steamer;  change 
of  orders. 

An  officer  of  the  Army  was  relieved  from  duty  at  his  pennanent 
station  in  time  to  permit  him  to  proceed  to  Seattle,  Wash.,  and  there 
take  passage  on  a  steamer  going  to  a  post  in  Alaska  to  which  he  had 
been  assigned.  After  his  arrival  in  Seattle,  and  on  the  day  before 
the  sailing  of  the  steamer  on  which  he  was  to  take  passage,  the  officer's 
orders  were  changed  by  assigning  him  to  a  different  station,  and  he 
was  compelled  to  remain  in  Seattle  for  a  period  of  time  awaiting  the 
sailing  of  another  vessel  going  to  his  new  station. 

Held^  that  the  officer  acquired  no  right  to  quarters  or  to  commuta- 
tion thereof  during  the  time  he  was  compelled  to  await  the  sailing 
of  his  steamer  to  his  new  station,  the  delay  being  regarded  as  an 
incident  of  his  travel. 

(Comp.  of  the  Treas.,  May  2,  1913.) 


TRANSPORTATION:  Release  of  carrier  from  liability;  Government  bill  of 
lading. 

A  shipment  of  household  goods  of  an  officer  changing  station  was 
made  upon  a  regular  form  of  Government  bill  of  lading,  which  is 
subject  to  all  the  conditions  and  limitations  of  a  uniform  or  standard 
bill  of  railroad  companies  and  takes  the  same  rates  provided  for  ship- 
ments therein  with  the  addition  that — 

"  The  shipment  is  at  '  owner's  risk,'  or  released  rates  where  the 
tariff  provides  lower  rates  on  that  account,  and  at '  company's  risk,' 
where  the  tariff  makes  no  such  provision." 

Two  rates  were  provided  for  the  transportation  of  household  goods, 
one  a  lower  rate  where  the  value  of  the  goods  was  limited  or  released. 
to  $10  per  hundred  pounds,  and  the  other  a  higher  rate  where  there 
was  no  such  release,  and  where  the  transportation  company  would  be 
liable  for  the  full  value  of  the  property  in  case  of  loss.  It  was 
claimed  that  at  the  time  of  the  shipment  a  classification  was  effective 
which  provided  that  where  shippers  desired  reduced  rates  based 
upon  agreed  values — 

"A  statement  to  that  effect  must  be  written  out  or  stamped  in  full 
upon  the  bill  of  lading  at  time  of  shipment  and  the  shipper  required 
to  accept  in  writing  the  value  expressed,"  and  that  "  where  shippers 
do  not  desire  to  avail  themselves  of  the  reduced  ratings  based  upon 
agreed  value,  notation  of  that  effect  should  be  inserted  on  the  bill  of 
lading  by  the  agent  at  time  of  shipment." 

Held^  following  the  interpretation  heretofore  placed  upon  the  pro- 
visions of  the  Government  bill  of  lading,  that  the  shipment  in  ques- 
tion should  be  regarded  as  having  been  made  at  the  reduced  rates 
based  upon  a  release  of  value  and  consequent  release  of  liability  of 
the  transportation  company  to  value  required  to  secure  reduced  rates, 
and  that  the  claim  for  the  difference  between  the  higher  and  the 
lower  rate  should  be  disallowed. 

(Comp.  of  the  Treas.,  May  21,  1913.) 


TRAVELING  EXPENSES:  Civilian  employees;  expense  of  board  and  lodg- 
ing at  their  homes  while  on  temporary  duty. 
Certain  civilian  employees  on  temporary  duty  presented  with  their 
expense  accounts  subvouchers  signed  by  their  wives  which  included 


224       DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

board  and  lodging.  It  was  understood  that  tliey  were  living  at  their 
homes  at  the  time  they  were  engaged  on  temporary  duty.  Under 
paragraph  744,  Army  Regulations,  1910,  civilian  employees  in  any 
branch  of  the  military  service  are  entitled  to  reimbursement  of  actual 
expenses  when  traveling  under  competent  orders  for — 

"  Cost  of  meals,  and  lodgings  including  baths,  tips,  and  laundry 
work,  not  to  exceed  $4.50  a  day  while  on  duty  at  places  designated  in 
the  orders  for  the  performance  of  temporary  duty." 

Held^  that  civilian  employees  receive  this  reimbursement  on  the 
theory  that  they  continue  in  a  traveling  status,  and  that  by  presenting 
vouchers  signed  by  their  wives  it  wx»uld  appear  that  they  had  aban- 
doned this  status.  The  payment  of  expense  accounts  of  such  em- 
ployees supported  by  receipts  signed  by  their  wives  for  board  and 
lodging  was,  therefore,  unauthorized. 

(Comp.  of  the  Treas.,  May  17,  1913.) 


BULLETIN    23. 

Bulletin  1  AVAR  DEPARTMENT. 

No.  23.     J  Washington,  July  Jo,  1913. 

The  following  digest  of  opinions  of  the  Judge  Advocate  Geneiiil 
of  the  Army  for  the  month  of  June,  1913,  and  of  certain  decisions  of 
the  Comptroller  of  the  Treasury,  and  of  the  courts,  and  of  opinions 
of  the  Attorney  General,  is  published  for  the  information  of  the 
service  in  general. 

[2054671,  A.  G.  O.] 

By  order  or  the  Secretary  of  War  : 

LEONARD  WOOD, 
Major  Gejieral,  Chief  of  Staff. 
Official  : 

GEO.  ANDREWS, 

The  Adjutant  General, 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEEAL. 

APPROPRIATIONS:    Lump-sum;    payment    for    personal    service;    transfer 
from  a  statutory  position. 

It  was  proposed  to  transfer  a  clerk  in  tlie  War  Department  receiv- 
ing a  statutory  compensation  of  $1,800  per  annum  to  a  position 
neAvly  created  involving  the  performance  of  essentially  different 
duties  at  a  compensation  of  $3,600  per  annum,  to  be  paid  fi-om  lump- 
sum appropriations.  Section  7  of  the  general  deficiency  act  of  August 
26,  1912  (37  Stat.,  626),  provides: 

"Nor  shall  any  person  employed  at  a  specific  salary  be  hereafter 
transferred  and  hereafter  paid  from  a  lump-sum  appropriation  at  a 
rate  of  compensation  greater  than  such  specific  salary." 

Tleld.,  that  the  above  provision  was  intended  only  to  prevent  the 
transfer  from  a  position  with  a  specific  salary  or  compensation  to 
another  position  paid  from  a  lump-sum  appropriation  at  an  increased 
compensation  where  the  duties  or  services  required  were  the  same  or 
similar,  but  that  where  the  duties  are  essentially  dissimilar  such 
transfer  might  be  made  without  violating  the  provisions  of  said  act, 
and  that  the  proposed  transfer  might  lawfully  be  made.  Decision 
of  Comptroller  of  the  Treasurv,  June  6,  1913. 

(5-075,  J.  A.  G.,  June  13,  1913.) 

Similarly  held.,  that  a  clerk  at  a  specific  salary  in  the  Department 
of  Agriculture  might  be  transferred  to  a  position  in  the  War  Dejiart- 
ment  at  an  increased  compensation  paid  from  a  luiup-suin  ajipropna- 
tion  where  the  duties  to  be  performed  were  essentialh'  dillVrent. 

(5-075,  J.  A.  G.,  June  13,  1913.) 

93668°— 17 15  225 


226        DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

APPROPRIATIONS:  Lump-sum;  payment  for  personal  services;  increase  of 
compensation  by  reason  of  increased  efficiency;  same  or  similar  services. 

It  was  proiDosed  to  increase  the  pay  of  a  junior  engineer  in  a  dis- 
trict engineer's  office  who  was  paid  from  a  hmip-sum  appropriation, 
on  the  ground  of  his  long-continued  service  and  consequent  increase 
in  proficiency  and  capacity  for  work. 

Held^  that  section  7  of  the  general  deficiency  act  of  August  26, 
1912  (37  Stat.,  626),  forbids  the  increase  of  compensation  for  per- 
sonal services  of  employees  paid  from  lump-sum  appropriations  for 
the  performance  of  the  same  or  similar  services  beyond  the  amount 
paid  for  such  services  during  the  preceding  fiscal  year,  and  that  in- 
creased proficiency  arising  from  experience  and  length  of  service  does 
not  so  differentiate  the  services  as  to  prevent  them  from  being  the 
same  or  similar  within  the  meaning  of  the  statute;  held^  therefore, 
that  the  proposed  increase  could  not  be  made. 

(5-075,  J.  A.  G.,  June  20,  1913.) 

It  was  proposed  to  increase  the  compensation  of  an  employee  in 
the  engineer  service  at  large  from  July  1,  1913,  paj^able  from  a  lump- 
sum appropriation,  without  changing  the  character  of  his  service, 
the  increased  compensation  not  to  exceed  the  amount  paid  by  the 
United  States  Reclamation  Service  for  the  same  or  similar  service, 
during  the  preceding  fiscal  year. 

Ileld^  that  the  act  forbidding  the  increase  of  compensation  of  em- 
ployees paid  from  lump-sum  appropriations  to  a  greater  rate  than 
that  paid  for  the  same  or  similar  services  during  the  preceding  fiscal 
year  contemplated  services  rendered  under  the  same  or  similar  con- 
ditions and  at  the  same  or  like  places,  and  that  an  employee  could  not 
be  continuously  promoted  until  his  pay  reached  the  highest  rate  paid 
to  any  one  rendering  the  same  or  similar  services  in  any  branch  of 
the  (lovernment  service;  held,  therefore,  that  the  employee  could 
not  be  paid  at  a  greater  rate  of  compensation  than  that  which  he 
had  received  for  the  same  or  similar  services  during  the  next  pre- 
ceding fiscal  vear. 

(5-075,  J.  A.  G.,  June  27,  1913.) 


APPROPRIATIONS:  Setting  aside  a  certain  portion  of  a  general  appropria- 
tion for  a  particular  pui-pose;  availability  of  the  surplus. 

The  general  appropriation  for  "  roads,  walks,  wharves,  and  drain- 
age "  for  the  fiscal  year  1913  in  the  act  of  August  24,  1912,  contains 
the  proviso  (37  Stat.,  584)  — 

'  That  thirty  thousand  dollars  of  the  amount  herein  appropriated, 
or  so  much  thereof  as  may  be  necessary,  may  be  used  for  draining 
and  filling  swamps  within  the  Government  reservation  on  Constitu- 
tion Island,  United  States  Militarv  Academy,  West  Point,  New 
York." 

Only  $29,000  of  this  amount  was  found  necessary  for  the  purpose, 
and  the  question  arose  as  to  whether  or  not  the  remaining  $1,000 
could  be  used  for  the  general  purposes  of  the  appropriation. 

Held,  that  while  the  effect  of  a  provision  of  this  character,  if  un- 
qualified, was  to  set  aside  from  the  appropriation  the  amount  named 
for  the  specific  purpose,  in  which  case  no  portion  of  such  amount 
could  be  used  for  any  other  purpose,  yet  as  the  language  in  this  case 


DIGEST   OF    OPINIONS   OF    fHE    JUDGE    ADVOCATE    GENERAL.        227 

was  qualified  by  the  clause  "  or  so  much  thereof  as  may  be  necessary," 
the  effect  was  to  set  aside  only  so  much  from  the  general  appropria- 
tion as  might  be  needed  for  the  specific  purpose,  leaving  the  balance 
available  for  the  other  purposes  of  the  appropriation. 
(5-24D.2,  J.  A.  G.,  June  3,  1913.) 


BONDS:  Justification  and  sufficiency  of  sureties  on  bidder's  guarantees  and 

contractors'  bonds;  duplicate  certificates. 

• 

The  Chief  of  the  Quartermaster  Corps  submitted  the  question  as  to 
whether  a  certificate  of  the  clerk  of  a  United  States  court  as  to  tlie 
sufficiency  of  sureties  on  bidders'  guaranties  and  contractors'  bonds 
was  required  to  be  placed  on  more  than  one  of  the  instruments  where 
the  contracts  are  required  to  be  executed  in  triplicate,  or  whetlier  it 
would  be  sufficient  if  the  certificate  should  be  attached  to  one  number 
with  a  reference  thereto  on  the  others. 

Held,  that  the  affidavit  of  justification  and  certificate  of  sufficiency 
of  sureties  to  a  contractor's  guaranty  or  bond  are  no  part  of  the  in- 
strument (Dig.  J.  A.  G.,  1912,  p.  195),  and  that  there  was  no  legal 
objection  to  requiring  the  certificate  to  ho,  placed  only  upon  one  num- 
ber of  the  guaranty  or  bond,  reference  being  made  thereto  on  the 
other  numbers. 

(12-311,  J.  A.  G.,  June  5,  1913.) 


CONTRACTS:   Opening  of  bids;  accepting  a  proposal  after  the  time  fixed 
for  receipt  of  same. 

A  contract  was  to  be  let  for  remodeling  a  building,  and  the  time  for 
opening  proposals  therefor  was  fixed  at  11  a.  m.  The  lowest  bid  was 
received  7  minutes  after  the  time  fixed  for  opening,  but  13  minutes 
before  the  bids  were  actually  opened.  It  was  not  claimed,  nor  did  it 
appear,  that  the  lowest  bidder  derived  any  advantage  from  the  delay 
in  submitting  his  bid. 

Held,  that  under  these  circumstances  the  lowest  bid  might  be  re- 
ceived and  the  contract  awarded  to  the  lowest  bidder,  the  case  being 
one  where  the  strict  requirements  of  the  regulations  might  be  waived. 

(76-251,  J.  A.  G.,  June  12,  1913.) 


DISCIPLINE:  Prisoner  awaiting  trial;  punishment. 

An  enlisted  man  of  the  Army  under  confinement  awaiting  trial 
was  subjected  to  solitary  confinement  on  bread  and  water  for  refund 
to  work,  by  order  of  the  post  commander,  who  was  of  opinion  tli:it 
discipline  demanded  immediate  action,  and  that  his  action  was  justi- 
fied by  the  Manual  of  Guard  Duty.  Paragraph  343  of  said  manual 
prescribes  that : 

-  "A  general  prisoner  who  refuses  to  work  may,  for  his  fiist  olTeusc, 
be  closely  confined  and  deprived  of  his  next  meal,^but  foo.i  wdl  bo 
allowed  him  as  soon  as  he  consents  to  resume  work." 
Paragraph  358  of  the  same  manual  provides  that: 
"The  foregoing  rules  will  be  enforced  with  reference  to  garrison 
prisoners  so  far  as  applicable." 


228       DIGEST  OF   OPIXIOXS  OF    TKE    JUDGE   ADVOCATE   GENERAL. 

Htld,  tliat  said  paragiaplis  of  the  Manual  of  Guard  Duty  had  no 
application  to  an  enlisted  man  held  awaiting  trial,  as  he  was  not  a 
garrison  or  a  general  prisoner,  nor  was  he  being  punished. 

HeM  further,  that  an  enlisted  man  awaiting  trial  should  not  be 
pimislied  for  refusal  to  perform  duty  except  as  any  other  enlisted 
man  not  serving  sentence  might  be  so  punished,  and  that,  except  in 
extreme  cases  where  tlie  necessities  of  discipline  required  immediate 
action,  the  post  commander  would  not  be  authorized  to  resort  to 
sunmiary  punishment,  but  should  avail  himself  of  the  orderly  pro- 
cedui-e  prescribed  for  maintaining  discipline. 

(30-133.  J.  A.  G..  Jime  9.  1013.) 


FOE  AGE:  AIlo"waiice  for  mount  of  an  officer  on  leave  of  absence. 

A  first  lieutenant  of  the  Philippine  Scouts  desired  to  have  forage 
issued  for  his  authorized  private  moimt  while  he  was  away  from 
his  peiTQanent  station  on  leave  of  absence,  and  an  opinion  was  asked 
as  to  whether  the  same  might  lawfully  be  issued  in  view  of  the  de- 
cision of  the  Comptroller  of  the  Treasury  of  January  17.  1913  (19 
Comp.  Dec.  453  K  digested  in  W.  D.  Bui.  Xo.  4.  p.  16.  current  series. 
Said  opinion  related  to  an  officer  of  the  Medical  Reserve  Corps  who 
had  been  gi-anted  a  leave  of  absence  and  ordered  to  his  home  to  be 
relieved  from  active  duty  upon  the  expiration  of  such  leave,  and  who 
claimed  forage  for  his  private  authorized  mount  kept  by  him  at  his 
home. 

Hdd.  that  it  was  not  apparent  that  the  Comptroller  of  the  Treas- 
ury had  overruled  the  long-established  practice  of  allowing  officers 
on  leave  of  absence  but  not  detached  fi'om  their  stations  forage  for 
their  private  mounts  owned  and  kept  by  them  at  the  station  to  which 
they  were  attached. 

Hild  further,  that  within  the  meaning  of  the  statute  relating  to  the 
issue  of  forage  for  private  authorized  moimts  of  officei-s.  an  officer  on 
leave  of  absence  was  still  to  be  regarded  as  on  duty  at  the  station  to 
which  he  was  attached,  and  that  forage  might  be  issued  for  his  au- 
thorized mount  during  his  absence  on  such  leave.  The  concluding 
portion  of  the  digest  of  the  Comptroller's  decision  was  perhaps  stated 
too  broadly,  and  should  have  contained  the  qualification  that  the 
mount  for  which  forage  was  claimed  was  one  kept  by  the  officer  at  his 
home  and  elsewhere  than  at  the  station  to  which  he  had  been  attached 
for  dutv. 

( 72-143,  J.  A.  G..  June  25.  1913.) 


MTLITTA:  Officers  attending  Field  Service  School  for  Medical  Officers;  quar- 
ters and  commutation  thereof. 

Certain  officere  of  the  Organized  Militia  attended  the  Field  Service 
School  for  Medical  Officei-s  at  Leavenworth.  Kans.,  from  April  1  to 
May  23.  1913,  in  pursuance  of  authority  contained  in  section  16  of 
themilitia  law  of  January  21.  1903.  as  amended  by  section  10  of  the 
act  of  May  27.  1908  (35  Stat..  402).  which  provides  that  whenever  an 
officer  of  the  Organized  Militia  shall,  under  certain  conditions  recited, 
attend  and  pursue  a  regular  course  of  study  at  any  military  school  or 


DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.       229 

college  of  the  United  States  such  officer  "shall  receive  from  the  an- 
nual appropriation  for  the  support  of  the  Army,  the  same  travel  al- 
lowances and  qnaj'ters  or  commutation  of  quarters  to  which  an  officer 
*  *  *  of  the  Regular  Army  would  be  entitled  for  attending  such 
school  or  college  under  orders  from  proper  military  authority."' 

Upon  arrival  at  the  school  these  officers  were  assigned  to  and  occu- 
pied public  quarters,  but  afterwards  of  their  own  volition  moved  out 
of  them  and  provided  their  own  quarters,  apparently  believing  that 
they  were  entitled  either  to  commutation  of  quarters  or  quarters  in 
kind  as  they  might  elect. 

Section  16  of  General  Orders  No.  128,  W.  D.,  1911,  provided  with 
reference  to  officers  of  the  militia  attending  such  schools  that  "  militia 
officers  can  not  be  furnished  with  quarters  in  kind,"  and  paragraph 
341  of  the  Regidations  of  the  War  Department  for  the  Government 
of  the  Organized  Militia  contains  substantially  the  same  provision. 

Ileld^  that  there  is  no  authority  for  the  rule  that  militia  officers  so 
circumstanced  can  not  be  furnished  quarters  in  kind,  and  that  these 
officers,  having  been  furnished  quarters  in  kind,  were  not  entitled  to 
commutation  thereof,  as  an  Army  officer  similarly  situated  Avoukl 
not  have  been  entitled  to  such  commutation. 

(58-411.1,  J.  A.  G.,  June  7,  1913.) 


MILITIA:   Rental  of  rifle  ranges  purchased  for,  to  the  United  States  and  to 
private  parties;  disposition  of  proceeds. 

On  submission  of  the  question  for  o]:)inion  as  to  the  right  of  a  state 
to  charge  the  United  States  a  rental  for  the  use  of  a  rifle  range  pur- 
chased for  the  use  of  its  Organized  Militia,  and  of  the  right  of  the 
state  or  of  the  United  States  to  lease  such  ranges. 

Held,  that  where  a  state  rifle  range  was  purchased  from  a  Federal 
allotment  for  "  promotion  of  rifle  practice  "  under  section  1661,  Re- 
vised Statutes,  and  the  title  thereto  vested  in  the  United  States,  there 
was  no  legal  authority  for  its  leasing  by  the  state  to  the  United 
States  and  the  payment  of  rental  therefor. 

Held  fuHher,  that  Avhile  these  ranges  are  the  property  of  the 
United  States,  and  w  hile  thev  are  under  the  immediate  control  of  the 
militia  authorities  of  the  state,  they  are  subject  to  the  general  au- 
thority of  the  War  Department,  and  that  the  Secretary  of  War.  if  all 
or  any  portion  of  any  such  a  range  shall  not  be  needed  for  the  use  of 
the  state  militia,  may  authorize  its  lease  under  the  provisions  of  the 
act  of  July  28.  1892  '(27  Stat.,  321),  and  that  the  funds  derived  from 
such  leasing  should  be  deposited  in  the  Treasury  of  the  United  States 
to  the  credit  of  miscellaneous  leceipts. 
(58-520,  J.  A.  G.,  June  2,  1913.) 


OFFICIAL  CORRESPONDENCE:  Teleg-ram  in  relation  to  the  purchase  of  a 
mount. 
An  officer  of  the  Army  required  by  law  to  be  mounted  at  liis  OAvn 
expense,  was  directed  by  his  commanding  officer  to  purchase  a  suit- 
able mount  for  his  use  as  field  officer.  He  took  the  matter  up  with  a 
purchasing  officer  of  the  Quartermaster  Corps,  and  the  latter  sent 


230        DICxEST   OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL. 

him  a  telegram  informing  him  that  he  had  found  a  suitable  horse 
for  his  use,  naming  the  price,  and  advising  that  it  be  purchased. 
The  horse  was  accordingly  purchased  and  afterwards  approved  as  a 
suitable  mount. 

Held^  that  the  telegram  was  but  an  incident  to  the  purchase  of  the 
horse,  and  should  be  regarded  as  pertaining  to  the  officer's  private 
business  and  not  to  the  official  business  of  the  Government. 

(22-050,  J.  A.  G.,  June  16,  1913.) 


OFFICIAL  RECORDS:   Furnishing  copies  for  use  in  court. 

Copies  of  certain  plans  of  work  done  by  a  contractor  were  desired 
by  an  attorney  for  use  before  a  court  in  a  suit  against  the  contractor 
for  an  injury  to  a  workman  employed  on  the  work. 

Ileld.,  that  where  copies  of  bonds  or  other  papers  or  records  of  the 
War  Department  are  necessary  in  the  administration  of  justice,  and 
are  applied  for,  it  is  usual  to  require  a  certificate  of  the  tribunal 
before  which  the  matter  is  pending  to  the  effect  that  the  same  are 
necessary  and  material  to  such  proceedings. 

Advised^  therefore,  that  the  applicant  be  informed  that  a  copy  of 
the  plans  would  be  furnished  for  his  use  before  the  court,  provided 
he  should  furnish  a  certificate  or  rule  of  the  court  to  the  effect  that 
they  are  necessary  or  material  to  the  administration  of  justice  in  the 
suit  in  question.     Dig.  Op.  J.  A.  G.,  1912,  p.  829. 

(66-124,  J.  A.  G.,  June  25,  1913.) 


PARDON:   Effect  of;  forfeiture  by  desertion  of  the  right  to  hold  offices  of 
trust  and  profit. 

A  member  of  the  Philippine  Scouts  was,  by  sentence  of  court- 
martial,  dishonorably  discharged  from  the  service  of  the  United 
States  for  desertion  and  larceny,  and  in  addition  a  term  of  imprison- 
ment was  imposed  as  punishment,  which  he  served  and  was  released. 
Upon  application  for  pardon, 

Held^  that  one  of  the  effects  of  desertion  was  to  forever  bar  the 
deserter  from  holding  any  office  of  trust  or  profit  under  the  United 
States,  and  in  this  regard  the  disqualification  was  a  continuing  one, 
and  hence  capable  of  pardon. 

Held,  therefore,  that  the  pardon  had  still  matter  upon  which  to 
operate  and  might  properly  be  recommended. 

(68-110,  J.  A.  G.,  June  28,  1913.) 


PARTISTERSHIP:  Payment  to  one  member  of  a  firm  after  the  other  has 
become  bankrupt. 

A  contract  for  the  construction  of  a  power  plant  at  an  Army 
arsenal  was  made  with  a  partnership  composed  of  two  members 
doing  business  under  the  name  of  one  of  the  partners  as  the  firm 
name.  Thereafter,  in  a  suit  between  the  partners,  one  of  them 
was  by  order  of  court  appointed  as  managing  partner  of  the  firm 
with  authority  to  carry  out  the  Government  contract.  The  man- 
aging partner  thereupon  filed  a  bond  as  required  by  the  order  of 


DIGEST   OF    OPrNIONS    OF    THE    JUDGE    ADVOCATE    GENEILVL.       231 

the  court  and  proceeded  with  the  work  under  the  contract,  and  a 
considerable  amount  became  due  for  work  performed.  Since  the 
order  of  the  court  appointing  the  managing  partner  the  other 
partner  went  into  bankruptcy,  and  a  receiver  in  bankruptcy  was 
appointed,  who  informed  the  commanding  officer  of  the  arsenal 
that  he  had  determined  that  he  had  no  right  to  complete  the  con- 
tract and  would  act  accordingly. 

Held,  that  the  bankruptcy  of  a  partnership  dissolves  tlie  firm 
(30  Cyc,  654),  and  where  the  interest  of  one  partner  is  trans- 
ferred in  bankruptcy  or  insolvency,  the  right  to  the  control  and  dis- 
position of  the  firm  assets  vests  in  the  other  pai-tners  (30  Cyc,  G04). 

Held  further^  that  it  was  proper  for  the  commanding  officer  to 
permit  the  managing  partner  to  complete  the  work  under  the 
contract,  and  to  draw  checks  in  payment  for  the  work  done  in  the 
name  of  the  firm  and  deliver  the  same  to  the  managing  partner, 
who  had  ample  authority  to  indorse  the  firm  name. 

(76-331.23,  J.  A.  G.,  June  2,  1913.) 


POST  EXCHANGE:   Contracting  with  the  Government  to  furnish  electric 
light. 

The  post  exchange  at  a  certain  military  ])ost  operated  for  its 
own  use  a  small  electric  plant  and  furnished  light  to  several  build- 
ings. It  was  desired  to  Imow  whether  the  exchange  could  be  paid  for 
light  furnished  to  officers  pursuant  to  regulations. 

Held^  that  there  was  no  reason  why  a  post  exchange  might  not 
enter  into  a  contract  with  the  Government  for  furnishing  electric 
current  for  lighting  the  authorized  allowance  of  quarters  for  officers 
on  duty  at  the  post. 

(40-041,  J.  A.  G.,  June  19,  1913.) 


PUBLIC  BUILDIlsrGS:  Restrictions  on  expenditures  upon  public  buildings 
or  military  posts. 

The  act  of  February  27,  1893  (27  Stat,  484),  provides: 

"  Hereafter  no  expenditures  exceeding  five  hundred  dollars  shall 
be  made  upon  any  building  or  military  post,  or  grounds  about  the 
same,  without  the  approval  of  the  Secretary  of  War  for  the  same, 
upon  detailed  estimates  of  the  Quartermaster's  Department    *    *    *." 

It  was  proposed  to  amend  paragraph  718,  Army  Regulations, 
1910,  reading  "  Nor  will  any  expenditures  exceeding  $r)00  be  made 
upon  any  biiilding  or  grounds  at  any  post,  fort,  ai-seual.  or  flo])ot 
without  the  approval  of  the  Secretary  of  War  and  upon  detailed  esti- 
mates submitted  to  him,"  so  as  to  exclude  arsenals  thei-efrom.  It  was 
further  proposed  that  the  Secretary  of  War  should  delegate  autiuu-ity 
to  act  in  his  name  in  the  approval  of  expenditures  upon  public  build- 
ings and  grounds  within  certain  limits  of  cost,  to  the  heads  of  the 
staff  departments. 

Held,  that  although  the  provision  placing  restrictions  ujion  the 
amount  to  be  expended  upon  buildings  or  militai-y  posts  was  con- 
tained in  the  part  of  the  law  appropriating  for  barracks  and  quar- 
ters under  the  control  of  the  Quartermasters  Department,  the  lau- 


232       DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

guage  of  the  law  was  broad  enough  to  inchide  arsenals,  and  that  the 
latter  were  subject  to  the  restriction. 

Held,  further,  that  the  law  implies  the  exercise  of  a  discretion  upon 
the  part  of  the  Secretary  of  War,  and  that  he  can  not  lawfully  dele- 
gate such  discretion  to  a  subordinate  oiRcer. 

(52-241,  J.  A.  G.,  June  16,  1913.) 


PUBLIC  PROPERTY:   Employment  of  experts  on  land  values  to  assist  a 
board  of  appraisers;  appropriation  chargeable. 

A  board  of  appraisers  had  been  appointed  pursuant  to  an  agree- 
'jient  to  ascertain  the  value  of  the  land  and  w^ater  rights  on  Lobos 
Creek,  Cal.,  belonging  to  the  Spring  Valley  Water  Co.  with  a  view 
to  their  purchase  by  the  Government,  and  the  assistance  of  experts 
on  land  values  was  desired  to  aid  the  board  in  arriving  at  a  proper 
conclusion. 

Held,  that  the  employment  of  experts  to  assist  the  board  of 
appraisers  was  proper  under  the  circumstances,  and  that  the  expenses 
should  be  charged  to  the  appropriation  of  $100,000  "'  for  the  pur- 
chase of  land  and  acquirement  of  water  rights  on  Lobos  Creek,  Cal.," 
etc.,  contained  in  the  act  of  March  4,  1909  (35  Stat.,  1003). 

(80-210,  J.  A.  G.,  June  24,  1913.) 


PUBLIC  "WORKS:   Disposal  of  the  right  to  the  temporary  use  of. 

Certain  private  parties  desired  the  exclusive  use  of  the  United 
States  Government's  easterly  breakwater  in  Chicago  Harbor  for  a 
limited  time  for  the  purpose  of  holding  a  carniA'al,  with  permission 
to  charge  an  entrance  fee  to  all  who  might  desire  to  enter  thereon. 
Section  14  of  the  act  of  March  3,  1899^(30  Stat.,  1152),  provides 
among  other  things  that — 

"  The  Secretary  of  War  may,  on  the  recommendation  of  the  Chief 
of  Engineers,  grant  ]3ermission  for  the  temporary  occupation  or  use 
of  any  of  the  aforementioned  public  works  whenever  in  his  judg- 
ment such  occupation  or  use  will  not  be  injurious  to  the  public 
interest." 

The  "  aforementioned  public  works  "  refers  back  to  an  enumeration 
Avhich  includes  those  of  the  same  character  as  the  breakwater  men- 
tioned. 

Held  that  the  statute  above  quoted  was  ample  authority  for  grant- 
ing the  request  for  the  temporary  occupation  of  said  breakwater. 

(80-816.1,  J.  A.  G.,  June  18,  1913.) 


PURCHASE  OF  SUPPLIES:   From  regimental  or  company  exchange;  post 
exchange. 

Certain  lumber  was  purchased  by  the  commanding  officer  of  a 
Signal  Corps  company  from  the  Twenty-second  Infantry  Exchange 
while  the  two  organizations  were  on  duty  on  the  Mexican  border, 
for  immediate  use  in  the  construction  of  a  frame  for  a  hospital  tent 
to  be  used  as  a  shelter  for  valuable  instruments  belonging  to  the 
United  States. 


DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       233 

11  dd,  that  a  regimental  or  company  exchange,  being  organized 
along  the  same  lines  and  for  the  same  purposes  as  a  regular  post  ex- 
change, although  not  recognized  as  a  governmental  agency  by  regu- 
lations, might  properly  be  regarded  as  an  extension  of  the  p*ost 
exchange,  and  that  the  bill  in  question  might  be  settled  the  same  as 
if  the  purchase  had  been  made  from  a  post  exchange. 

(40-100,  J.  A.  G.,  June  19,  1913.) 


STENOGRAPHIC  REPORTER:   Employment  of  an  enlisted  man. 

An  enlisted  man  at  a  post  was  employed  as  stenographic  reporter 
of  a  board  appointed  to  examine  into  and  report  uj^on  the  mental 
status  of  a  general  prisoner,  and  he  presented  a  bill  for  his  services 
at  the  rate  of  5  cents  per  100  words.  The  act  of  August  '24,  1913 
(37  Stat.,  575),  provides: 

"  That  hereafter  enlisted  men  may  be  detailed  to  serve  as  steno- 
graphic reporters  for  general  courts-martial,  courts  of  incjuiry,  mili- 
tary commissions,  and  retiring  boards,  and  while  so  serving  shall  re- 
ceive extra  pay  at  the  rate  of  not  exceeding  five  cents  for  each  one 
hundred  Avords  taken  in  shorthand  and  transcribed,  such  extra  pay 
to  be  met  from  the'  annual  appropriation  for  expenses  of  courts- 
inartial,  and  so  forth." 

Held.,  that  as  the  laAv  only  provided  for  employing  enlisted  men  as 
stenographic  reporters  and  paying  extra  compensation  therefor  when 
detailed  to  serve  as  reporters  for  general  courts-martial,  coui-ts  of 
inquiry,  military  commissions,  and  retiring  boards,  which  designa- 
tions did  not  embrace  a  board  of  the  character  in  question,  there  was 
no  authority  for  paying  for  this  extra  service. 

(72-237,  J.  A.  G.",  June  26,  1913.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

ABSENCE:   Leave  of,  to  per  diem  employees  at  the  United  States  Military 
Academy;  daily  employees. 

The  Secretary  of  War  requested  a  decision  whether,  if  regulations 
were  promulgated  by  his  department  providing  for  a  leave  of  absence 
with  pay  to  employees  at  the  Military  Academy  when  their  compensa- 
tion is  fixed  either  on  a  per  annum,  a  per  month,  or  a  per  diem  basis, 
they  could  be  paid  for  such  absence  as  might  be  authorized  by  the 
regulations. 

Held^  that  the  granting  of  a  leave  of  absence  with  pay  to  employ- 
ees whose  compensation  is  fixed  by  law  is  a  matter  within  the  dis- 
cretion of  the  Secretary,  but  for  those  whom  he  is  authorized  to 
employ  under  lump-sum  appropriations,  the  compensation  and  terms 
of  employment  are  matters  of  agreement  bet>yeen  the  parties:  that 
where  the  compensation  is  on  a  per  annum  basis,  there  is  a  degi-ee  of 
permanency  of  employment  which  makes  proper  the  exercise  of 
executive  discretion  in  agreeing  with  the  emj-doyee  for  a  leave  of 
absence  with  pav,  and  the  same  is  true  with  regard  to  those  employed 
on  a  per  diem  basis  where  the  rate  of  pay  merely  measures  the  com- 


234       DIGEST  OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

pensation  and  does  not  make  the  employment  one  by  the  day,  and 
where  there  is,  therefore,  the  same  degree  of  fixed  compensation  and 
permanency  as  in  the  case  of  pay  on  an  annual  basis. 

Held^  however,  that  where  the  employment  is  from  day  to  day  at 
a  certain  sum  for  a  day's  wages,  although  the  time  of  employment  is 
indefinite,  it  would  be  foreign  to  the  character  of  the  employment  to 
agree  to  a  leave  of  absence  with  pay,  and  the  granting  of  the  same 
would  be  unauthorized. 

Field  further^  that  the  granting  of  a  leave  of  absence  with  pay  to 
employees  paid  from  lump-sum  appropriations  pursuant  to  such  an 
agreement  does  not  fall  within  the  prohibition  of  section  4  of  the 
act  of  March  4,  1913  (37  Stat.,  790),  providing  that  no  part  of  any 
money  therein  or  thereafter  appropriated  in  lump  sum  should  be 
available  for  the  payment  of  personal  services  at  a  rate  of  compen- 
sation in  excess  of  that  paid  for  the  same  or  similar  services  during 
the  preceding  fiscal  year. 

(Comp.  R.  J.  Tracewell,  Apr.  17,  1913.) 


ALLOWANCES:   Quarters,  and  heat  and  light;  officer  serving  with  troops. 

An  officer  of  the  Army  serving  with  troops  in  China  was  furnished 
by  the  Quartermaster  Corps  with  one  bedroom  in  a  hotel  rented  by 
the  quartermaster  for  the  purpose  at  a  certain  rate  per  month,  in- 
cluding heat  and  light.  The  officer's  rank  entitled  him  to  three  rooms 
as  quarters. 

Held,  that  it  is  the  duty  of  the  Quartermaster  Corps  to  provide 
quarters  for  officers  of  the  Army  on  duty  with  troops,  and  that  an 
officer  on  duty  with  troops  is  entitled  only  to  such  quarters  in  kind 
as  may  be  provided  for  him,  not  exceeding  the  maximum  allowance 
for  his  ranli,  whether  the  same  be  the  number  of  rooms  allowed  for 
his  rank,  a  single  room,  or  a  tent;  and  that  if  the  same  be  heated  and 
lighted  at  Government  expense,  he  is  not  entitled  to  any  additional 
allowance  on  that  account.     (18  Comp.  Dec,  592.) 

(Asst.  Comp.  W.  W.  Warwick,  June  3,  1913.) 


APPROPRIATIONS:   Lump-sum;  payment  for  personal  services;  transfer 
from  position  "with  specified  compensation. 

Section  7  of  the  general  deficiency  act  of  August  26,  1912  (37 
Stat,  626),  as  amended  by  section  4  of  the  act  of  March  4,  1913 
(37  Stat.,  790),  reads: 

"  That  no  part  of  any  money  contained  herein  or  hereafter  appro- 
priated in  lump  sum  shall  be  available  for  the  payment  of  personal 
services  at  a  rate  of  compensation  in  excess  of  that  paid  for  the  same 
or  similar  services  during  the  preceding  fiscal  year;  nor  shall  any 
person  employed  at  a  specific  salary  be  hereafter  transferred  and 
hereafter  paid  from  a  lump-sum  appropriation  a  rate  of  compensa- 
tion greater  than  such  specific  salary,  and  the  heads  of  departments 
shall  cause  this  provision  to  be  enforced.     *     *     *." 

The  question  was  submitted  whether  the  latter  part  of  said  sec- 
tion 7  prohibits  the  appointment  as  special  agent  in  the   Indian 


DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.        235 

Service  at  a  salary  of  $2,000  per  aniiuni  of  a  clerk  in  the  Bureau  of 
Indian  Affairs  lioldin<j^  a  position  with  a  salary  fixed  by  law  at  less 
than  $2,000  per  annum. 

The  appropriation  "  General  expenses,  Indian  Service,  lOlS,"  ron.l-^ 
in  part: 

"  For  pay  of  special  agents  at  two  thousand  dollai's  per  annum ; 
for  traveling  and  incidental  expenses  of  sUch  special  agents,  includ- 
ing sleeping-car  fare,  and  a  per  diem  of  three  dollars  in  lieu  of 
subsistence  when  actually  employed  on  duty  in  the  field  or  ordered  to 
the  seat  of  government;  *  *  *  for  pay  of  employees  not  othei-- 
wise  provided  for;  *  *  *  $125,000."  (Act  of  Aiig.  24,  1912,  37 
Stat.,  521.) 

Section  3  of  the  act  of  August  23^,  1912  (37  Stat.,  413),  contains  a 
similar  provision  to  that  found  in  section  7  of  the  general  deficiency 
act  of  August  26,  1912,  supra^  limited  to  the  appropriations  in  lump 
sum  contained  in  the  act,  and  the  compensation  restricted  to  the 
rates  paid  during  the  fiscal  year  1912. 

Ileld^  that  in  so  far  as  the  employment  of  special  agents  were  con- 
cerned, the  appropriation  for  general  expenses  of  the  Indian  Serv- 
ice was  not  a  lump-sum  appropriation,  and  that  the  appointment 
of  a  clerk  in  the  Bureau  of  Indian  Affairs  holding  a  jDosition  with  a 
salary  fixed  at  less  than  $2,000  per  annum,  as  a  special  agent  at 
$2,000  per  annum,  was  not  forbidden  by  the  law,  since  it  w^ould  l)e 
a  transfer  to  a  position  the  compensation  of  which  was  fixed  by  law, 
and  which  therefore  was  a  statutory  position  and  not  one  paid  from 
a  lump-sum  appropriation.     Overruling  19  Comp.  Dec,  613. 

The  further  question  was  submitted  as  to  whether  a  clerk  in  the 
Bureau  of  Indian  Affairs  holding  a  statutory  position  could  l^e 
transferred  to  a  clerkship  or  a  superintendency  in  the  field  service  at 
an  increased  salary  to  be  paid  from  a  lump-sum  approj)riation,  not 
in  excess  of  that  paid  for  similar  services  during  the  fiscal  year  1912. 
The  position  held  in  the  bureau  at  Washington  had  no  relation  or 
similarity  so  far  as  duties  were  concerned  to  the  position  in  the  field. 

Held.,  that  a  hona  fide  transfer  is  not  prohibited  from  a  position  at 
a  specific  salary  to  a  position  in  the  field  paid  from  a  lump-sum 
appropriation  at  a  higher  salary,  the  latter  position  having  duties 
not  in  fact  the  same  or  similar  to  those  of  the  former  and  the  rate  of 
compensation  not  being  in  excess  of  the  rates  specified  in  the  first 
part  of  section  7  of  the  act  of  August  26,  1912,  which  fixes  a  limit  to 
the  pay  from  a  lump  sum  appropriation  for  personal  services;  and 
that  the  transfer  proposed  could  be  made,  subject  to  the  limitations 
stated. 

(Comp.  Geo.  E.  Downey,  June  6, 1913.) 


GRATUITY:   Six  months' pay  to  representative  of  deceased  soldier;  designa- 
tion of  beneficiary. 

The  act  of  May  11,  1908  (35  Stat.,  108),  as  amended,  provides  that 
upon  the  death  of  an  officer  or  enlisted  man  in  the  active  service 
from  wounds  or  disease  not  the  result  of  his  own  misconduct,  an 
amount  equal  to  six  months'  pay  at  the  rate  the  soldier  was  receiv- 
ing at  the  time  of  his  death  shall  be  paid  to  his  widow  or  to  any  other 


236       DIGEST  OF   OPINIONS    OF    THE   JUDGE   ADVOCATE   GENERAL. 

person  previously  designated  by  him.  Said  act  further  provides 
that : 

"  The  Secretary  of  War  sliall  establish  regulations  requiring  each 
officer  and  enlisted  man  to  designate  the  proper  person  to  whom 
this  amount  shall  be  paid  in  case  of  his  death     *     *     *." 

Paragraph  1408,  Army  Kegulations,  1910,  makes  detailed  provi- 
sion for  the  manner  of  designating  the  beneficiary  as  provided  in 
said  act,  and  specifically  provides  that: 

"  Should  an  officer  or  enlisted  man  desire  to  change  a  beneficiary 
previously  designated  by  him  and  to  make  a  new  designation,  he 
may  do  this  by  filling  up  and  forwarding  to  The  Adjutant  General 
of  the  Army  another  blank  of  the  prescribed  form,  properly  signed, 
witnessed,  and  attested." 

An  enlisted  man  duly  designated  his  mother  as  beneficiary.  Sub- 
sequently in  a  letter  purporting  to  be  signed  by  him  he  stated: 
"  I  want  my  remains  sent  to  my  mother  *  *  *  and  my  bene- 
ficiaries paid  to  my  wife."  This  letter  was  delivered  to  the  com- 
manding officer  of  his  company  several  days  after  notification  of 
the  soldier's  death. 

Held,,  that  while  no  departure  from  the  regidations  should  be 
recognized,  excepting  where  it  is  clear  that  any  informal  designation 
is  entirely  free  from  doubt,  fraud,  or  mistake,  in  this  case,  if  it  satis- 
factorily appears  that  the  communication  expressing  the  desire  that 
his  wife  should  receive  his  death  benefit  was  signed  by  the  soldier, 
and  that  the  person  claiming  to  be  his  widow  was  lawfully  such, 
payment  of  six  months'  gratuity  might  be  made  to  her,  subject  to 
authorized  deductions. 

(Asst.  Comp.  W.  W.  Warwick,  June  21,  1913.) 


HEAT   AND   LIGHT:   Allowance   to   members   of  the   Nurse   Corps   of  the 
Navy;  appropriation  available. 

A  voucher  was  presented  for  the  payment  for  gas  furnished  to 
quarters  leased  by  the  Government  and  occupied  by  members  of  the 
Nurse  Corps  of  the  Navy.  The  rent  for  the  quarters  was  paid 
from  the  appropriation  for  the  pay  of  the  Navy  under  the  heading 
"  Rent  of  quarters  for  members  of  the  Nurse  Corps."  The  Nurse 
Corps  (female)  of  the  Navy  was  established  by  the  act  of  May  13, 
1908  (35  Stat.,  146),  which  provides  that  the  superintendent,  the 
chief  nurse  and  nurses  shall  respectively  receive  "  the  same  pay, 
allowances,  emoluments  and  privileges  as  are  now  or  may  hereafter 
be  provided  by  or  in  pursuance  of  law  for  the  nurses  of  the  Nurse 
Corps  (female)  of  the  Army." 

The  Army  Nurse  Corps  referred  to  was  established  by  the  act  of 
February  2,  1901  (31  Stat.,  753),  which  fixes  the  pay  ancl  allowances 
of  the  superintendent  and  nurses  of  the  Corps  and  provides,  among 
other  things,  that  "  they  shall  be  entitled  to  quarters." 

Paragraph  1061,  Army  Regulations,  1910,  fixes  the  allowance  of 
quarters  for  members  of  the  Nurse  Corps  on  detached  service  or  on 
special  duty  in  places  where  there  are  no  public  quarters  available, 
at  two  rooms  each,  and  provides  that  in  hospitals  or  where  buildings 
have  been  provided  for  them  heat  and  light  will  be  supplied  as  may 
be  necessary. 


DIGEST   or   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       237 

The  act  of  March  2,  1907  (34  Stat,  1167),  makes  provision  fur 
furnishing  heat  and  light  "  actually  necessary  for  the  authorized 
allowance  of  quarters  for  officers  and  enlisted  men  "  of  the  xVrmy.  at 
the  expense  of  the  United  States. 

Ileld^  that  the  members  of  the  Xurse>  Corps  came  within  the 
meaning  of  the  words  "  officers  and  enlisted  men  "  in  said  act  of 
March  2,  1907,  and  were  entitled  to  have  heat  and  light  furnished  for 
their  authorized  allowance,  of  quarters,  and  that  the  voucher  should 
be  paid  from  the  appropriation  "  Pay  of  the  Navy,"  from  which 
appropriation  bills  for  heat  and  light  furnished  to  officers  were  paid. 

(Asst.  Comp.  AV.  W.  Warwick,  June  4,  1913.) 


HEAT  AND  LIGHT:   Allowance  of,  for  officers'  quarters;  payment  of  com- 
muted value  to  officer;  number  of  rooms  occupied. 

An  officer  of  the  Navy  whose  rank  entitled  him  to  four  rooms  as 
quarters,  occupied  quarters  not  owned  by  the  Government  and  heated 
by  the  owner  thereof.  He  had  been  furnished  at  Government  ex- 
pense 4,000  cubic  feet  of  gas  for  kitchen  use,  which  was  less  than  the 
total  amount  to  which  he  w^as  entitled  as  an  officer  of  his  rank  for  his 
authorized  allowance  of  quarters.  An  officer  of  the  Navy  is  entitled 
to  the  same  allowances,  with  certain  exceptions,  as  are  provided  by 
law  and  regulations  for  an  officer  of  corresponding  rank  in  the  Arm3^ 
The  Army  act  of  March  2,  1907  (34  Stat.,  1167),  provides: 

''  Hereafter  heat  and  light  actually  necessary  for  the  authorized 
allowance  of  quarters  for  officers  and  enlisted  men  shall  be  furnished 
at  the  expense  of  the  United  States  under  such  regulations  as  the 
Secretary  of  War  may  prescribe.'' 

Paragraph  1052,  Army  Regulations,  1910,  jDrovides  that : 

"  *  *  *  Where  an  officer  or  noncommissioned  officer  is  occupy- 
ing quarters  other  than  public,  not  heated  by  a  separate  plant,  or 
for  which  it  is  impracticable  to  furnish  fuel  in  kind,  the  Quarter- 
master's Department  will  pay  the  owner  or  authorized  agent  of  such 
quarters  for  the  heat  at  a  rate  of  $4  a  cord  for  the^  fuel  allowance  for 
the  number  of  rooms  to  which  the  rank  of  the  officer  or  noncommis- 
sioned officer  entitles  him  as  set  forth  in  the  table  of  allowances,  para- 
graph 1060." 

Paragraph  1060  of  said  regulations  prescribes  a  fuel  allowance  of 
3^  cords  of  wood  per  month  to  an  officer  occupying  four  rooms  as 
quarters  during  the  season  the  officer  in  question  Avas  in  such  occu- 
pancy.    Paragraph  1056  of  said  regulations  pi'ovides  that : 

"Merchantable  oak  wood  is  the  standard:  the  cord  is  128  cubic 
feet.  The  scale  of  equivalents  to  govern  in  the  issue  and  sale  of  fu(>l 
will  be  published  from  time  to  time  in  general  orders." 

Held,  that  payment  could  be  made  to  the  officer  of  the  commuted 
value  of  the  fuel  allowance  computed  according  to  the  table  of 
equivalents  for  heat  furnished  for  the  number  of  rooms  actually 
occupied  by  him,  not  exceeding  four,  less  the  amount  already  paiil 
for  gas  for  kitchen  use.     See  in  this  connection  14  Comp.  Dec,  475. 

(Comp.  R.  J.  Tracewell,  Apr.  23,  1913.) 

A  chief  carpenter.  United  States  Navy,  entitled  by  law  to  the 
same  allowances  of  heat  and  light  for  his  authorized  allowance  of 


238       DIGEST  OF  OPINIONS  OF   THE   JUDGE  ADVOCATE   GENERAL. 

quarters  as  a  second  lieutenant  in  the  Armj'^,  occupied,  from  May 
1  to  October  21,  1907,  two  rooms  as  his  private  rented  quarters,  which 
were  heated  and  lighted  by  gas  not  separately  measured  or  charged 
for.     The  Army  Kegulations  then  in  force  provided: 

"  Each  officer  *  *  *  entitled  to  and  occupying  public  quar- 
ters, or  quarters  other  than  public  where  gas  *  *  *  ig  installed, 
will  be  allowed,  at  the  expense  of  the  United  States,  for  each  room 
to  whicli  his  rank  entitles  him,  for  the  period  between  September  1 
and  April  30,  1,500  cubic  feet  of  gas,  *  *  *  and  from  May  1  to 
August  31,  900  cubic  feet  of  gas     *     *     *     per  month. 

'•  AYhere  an  officer  *  *  *  occupies  quarters  other  than  public, 
which  are  lighted  by  gas,  *  *  *  and  the  quantity  supplied  is  not 
measured  by  separate  meter  readings,  the  Quartermaster's  Depart- 
ment will  make  settlement  with  the  owner  or  authorized  agent  for 
light  for  the  number  of  rooms  to  which  the  rank  of  the  officer 
*     *     *     entitles  him,  in  accordance  with  the  prescribed  allowance. 

"  Where  an  officer  *  *  *  is  occupying  quarters  other  than 
public,  not  heated  by  a  separate  plant,  or  for  which  it  is  imprac- 
ticable to  furnish  fuel  in  kind,  the  Quartermaster's  Department  will 
pay  the  owner  or  authorized  agent  of  such  quarters  for  heat  at  the 
rate  of  $4  per  cord  for  the  fuel  allowance  for  the  number  of  rooms  to 
which  the  rank  of  the  officer  *  *  *  entitles  him  as  set  forth  in 
the  table  of  allowances,  paragraph  1051." 

See  paragraphs  1043  and  1063,  Army  Regulations,  1904,  as  amended 
by  General  Orders,  War  Department,  No.  61,  March  22,  1907. 

Eeld^  That  the  effect  of  these  regulations  amounted  to  a  practical 
commutation  to  officers  of  the  maximum  amomits  of  their  heat  and 
light  allowances  in  cases  where  quarters  other  than  public  are  occu- 
pied, and  neither  the  heat  nor  light  allowance  therefor  is  separately 
measured. 

Held  further^  That  there  was  no  objection  to  making  the  payment 
of  the  commuted  value  of  these  allowances  directly  to  the  officer. 
The  claimant  was  therefore  given  the  maximum  allowance  for  heat 
and  light  for  two  rooms  occupied  by  him  for  the  period  stated. 
See,  however,  14  Comp,  Dec,  35,  39,  and  id.,  475. 

(Comp.  R.  J.  Tracewell,  Apr.  24,  1913.) 

A  lieutenant  commander  of  the  Navy,  entitled  to  five  rooms  as 
quarters,  was  in  receipt  of  commutation  of  quarters  and  occupied  one 
room  as  quarters  at  the  Army  and  Navy  Club  Building,  Washington, 
D.  C.,  which  was  neither  heated  nor  lighted  at  Government  expense, 
and  neither  heat  nor  light  furnished  therefor  was  separately 
measured. 

Held^  On  revision  of  the  action  of  the  auditor,  that  the  officer 
should  be  paid  the  maximum  allowance  for  heat  and  light  for  one 
room  during  the  period  of  such  occupancy.  In  this  connection  see 
14  Comp.  Dec,  475. 

(Comp.  Geo.  E.  Downey,  May  26,  1913.) 


PAY  OF  OFFICERS:   Ten  per  cent  increase  for  foreign  service;  detail  to  the 
Philippine  Constabulary. 

The  act  of  January  30,  1903  (32  Stat.,  783),  provides  as  follows: 

"  That  officers  of  the  Army  of  the  United  States  may  be  detailed 

for  service  as  chief  and  assistant  chiefs,  the  said  assistant  chiefs  not 


DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.       239 

to  exceed  in  number  four,  of  the  Philippine  Constabulary,  and  that 
during  the  continuance  of  such  details  the  officer  serving  as  chief  shall 
have  the  rank,  pay  and  allowances  of  brigadier  general,  and  the 
officers  serving  as  assistant  chiefs  shall  have  the  rank,  pay  and  allow- 
ances of  colonel:  Provided,  That  the  ditference  between  the  pay  and 
allowances  of  brigadier  general  and  colonel,  as  herein  provided,  and 
the  pay  and  allowances  of  the  officers  so  detailed  in  the  grades  from 
which  they  are  detailed  shall  be  paid  out  of  the  Philippine  treasui-y." 

It  appeared  to  have  been  the  practice  since  the  passage  of  said  act 
to  pay  officers  of  the  Army  detailed  for  duty  as  chief  and  assistant 
chiefs  of  the  Philippine  Constabulary  the  ten  per  cent  increase  in 
pay  authorized  by  law  for  foreign  service  as  of  their  rank  in  the 
United  States  Army,  but  the  act  had  not  received  any  formal  con- 
struction by  the  accounting  officers  of  the  Government  upon  this  par- 
ticular point.  The  Auditor  for  the  War  Department  submitted  to  the 
comptroller  his  construction  of  said  act,  holding  that  officers  detailed 
for  service  with  the  Philippine  Constabulary  should  be  paid  the  ten 
per  cent  increase  of  pay  authorized  for  foreign  service. 

Held,  that  Army  officers  so  detailed  and  serving  were  performing 
civil  and  not  military  duties,  and  were  therefore  not  entitled  to 
receive  from  the  United  States  the  ten  per  cent  increase  upon  the  pay 
of  the  grades  held  by  them  in  the  United  States  Army  as  for  foreign 
service.    The  x\uditor's  construction  was  therefore  disapproved. 

(Asst.  Comp.  W.  W.  Warwick,  June  23,  1913.) 


PURCHASE  OF  STJPPLIES:  For  the  use  of  the  branches  of  the  Army- 
service  in  Washing-ton;  general  supply  committee;  oflace  of  depot  engi- 
neer, Washington,  D.  C. 

Section  4  of  the  act  of  June  17,  1910  (36  Stat,  531),  provides: 

"That  hereafter  all  supplies  of  fuel,  ice,  stationery,  and  other 
miscellaneous  supplies  for  the  executive  departments  and  other  Gov- 
ernment establishments  in  Washington,  when  the  public  exigencies 
do  not  require  the  immediate  delivery  of  the  article,  shall  be  adver- 
tised and  contracted  for  by  the  Secretary  of  the  Treasury,  instead  of 
by  the  several  departments  and  establishments,  upon  such  daystis  he 
may  designate.  There  shall  be  a  general  supply  committee  in  lieu  of 
the  board  provided  for  in  section  thirty-seven  hundred  and  nme  of 
the  Revised  Statutes  as  amended,  composed  of  officers,  one  from  each 
such  department,  designated  by  the  head  thereof,  the  duties  of  which 
committee  shall  be  to  make,  under  the  direction  of  the  said  Secre- 
tary, an  annual  schedule  of  required  miscellaneous  supplies,  to  stand- 
ardize such  supplies,  eliminating  all  unnecessary  grades  and  varieties, 
and  to  aid  said  Secretary  in  soliciting  bids  based  up(»n  formulas  and 
specifications  drawn  up  bv  such  experts  in  the  service  of  the  (xovern- 
ment  as  the  committee  may  see  fit  to  call  upon,  who  shall  render  what- 
ever assistance  they  may  require     *     *     *•" 

On  submission  of  certain  (luestions  relating  to  the  purchase  of  supf- 
plies  for  the  use  of  the  various  branches  of  the  Army  situate^d  in 
Washington,  either  for  use  in  Washington  or  for  shipment  therefrom 
to  the  service  outside :  . 

Held,  That  the  War  Department  can  lawfully  enter  into  contracts 
for  the  delivery  of  supplies  embraced  in  the  schedule  of  the  general 


240        DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GEXEEAL. 

supply  committee,  said  supplies  either  to  be  delivered  in  Washington 
for  consumption  by  some  branch  of  the  outside  service  located  therein 
and  not  a  part  of  the  department  proper  or  for  storage  and  subse- 
quent reshipment  to  the  outside  service,  independently  of  the  act  of 
June  17,  1910. 

Held  further^  That  similar  purchases  of  supplies  may  be  made 
by  a  branch  of  the  outside  service  located  for  convenience  in  Wash- 
ington but  not  a  part  of  the  department  itself,  for  the  use  of  said 
service  in  the  District  of  Columbia  or  outside  thereof,  and  that  the 
local  engineer  officer  of  the  engineer  district  composed  of  the  States 
of  Maryland  and  Virginia  and  the  District  of  Columbia,  who  is 
located  in  Washington  for  convenience  and  not  by  law,  might  pur- 
chase supplies  of  the  class  or  kind  embraced  in  the  schedule  of  the 
general  supply  committee  without  complying  with  the  requirements 

OT  ^nio   *i  Pi" 

(Comp.  Geo.  E.  Downey,  June  20,  1913.) 


QUARTERS:   Commutation  while  awaiting  transportation. 

An  officer  of  the  Army  on  duty  at  a  post  with  troops  was  directed 
to  proceed  to  San  Francisco  at  "the  proper  time  to  take  a  transport 
leaving  for  Manila,  P.  I.,  and  to  take  transportation  thereon,  for 
assignment  to  duty  on  arrival  at  Manila.  Subsequently  and  before 
leaving  his  post  he  was  granted  a  leave  of  absence  extending  beyond 
the  time  the  transport  was  scheduled  to  sail.  Before  the  expiration 
of  his  leave  and  after  the  date  of  the  sailing  of  the  transport  his 
orders  were  amended  so  as  to  direct  him  to  report  to  the  command- 
ing officer  at  San  Francisco,  Cal.,  on  or  before  a  certain  date  for 
temporary  duty  and  to  proceed  to  the  Philippine  Islands  on  the 
first  available  transport  after  that  date.  His  order  also  detached 
him  from  his  former  command.  He  reported  January  7,  was  as- 
signed to  duty  with  station  at  San  Francisco,  Cal.,  and  embarked 
iov  Manila  on  the  transport  sailing  March  15. 

Helcl^  that  if  he  was  actually  engaged  in  the  public  service  during 
the  period  he  was  aw-aiting  the  sailing  of  the  transport,  he  was  esti- 
tled  to  commutation  for  quarters,  provided  no  public  quarters  were 
available  there  for  his  use. 

(Asst.  Comp.  W.  W.  Warwick,  June  7,  1913.) 


QUARTERS:   Furnished  in  kind;  authority  to  procure. 

A  quartermaster  sergeant  presented  a  claim  for  reimbursement 
for  the  amount  claimed  to  have  been  expended  by  him  from  his 
private  funds  for  the  hire  of  quarters  for  his  use  while  temporarily 
stationed  at  Washington  Barracks,  Washington,  D.  C.  He  stated 
that  there  being  no  quarters  available  at  the  post,  one_  room  w^as 
leased  for  him,  but  that  this  lease  was  canceled  necessitating  the 
payment  by  him  of  rent  from  his  private  funds  for.  the  use  of  the 
room  after  the  cancellation  of  the  lease.  There  was  no  evidence 
submitted  showing  that  the  soldier  was  authorized  to  procure  private 
quarters  for  himself  at  Government  expense. 


DIGEST   OF   OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.        241 

Ueld^  that  as  tliere  was  no  authority  show  n  for  the  hire  bv  the 
soldier  of  private  (|uarters  for  his  use,  the  chiim  must  be  treat<?d 
as  one  for  commutation,  and  that  commutation  of  quarters  was  for- 
bidden by  the  proviso  contained  in  the  appropriation  "  Barracks  and 
quarters"  in  the  Army  appropriation  act.  wliich  provides: 

"That  no  part  of  the  moneys  appropriated  sliall  be  ])aid  for  com- 
mutation of  fuel  or  quarters  to  officers  or  enlisted  men."  (  \ct  Vuir 
24.  1912,  37  Stat.,  581.) 

The  claim  was  therefore  disallowed. 

(Asst.  Comp.  W.  W.  Warwick,  June  20,  1913.) 


QTTABTEBS:   Furnished  in  kind;  temporary  duty. 

An  officer  while  on  duty  at  a  post  with  troops  was  assiorned  to 
temporary  duty  in  the  office  of  the  judge  advocate  of  the  division 
at  the  head(iuarters  near  by  where  there  were  no  quarters  available 
for  him.  He  formally  relinquished  his  right  to  quarters  whicli  he 
had  previously  occupied  and  requested  that  his  family  be  aHowed 
to  retain  the  occupancy  of  the  same  during  his  assignment  to  the 
temporary  duty.  His  family  continued  to  occupy  his  quarters  and 
the  officer  himself  occupied  them  at  night,  going  to  and  returning 
from  his  place  of  duty  at  his  own  expense.  He  claimed  commutation 
of  quarters  while  on  this  temporary  duty. 

Held^  that  the  officer  having  actually  occupied  public  quarters 
during  the  entire  period  covered  by  the  claim,  either  by  right  or  by 
courtesy,  he  was  not  entitled  to  commutation  therefor,  and  the  fact 
that  the  quarters  he  occupied  at  his  prior  station  were  not  needed 
for  other  officers  was  immaterial. 

Held  further^  that  this  officer's  case  was  distinguished  from  that 
of  Col.  Glenn  (19  Comp.  Dec,  379)  in  that  said  officer's  new  sta- 
tion was  so  far  removed  from  his  old  station  that  he  could  not  share 
the  quarters  occupied  by  his  family  through  the  courtesy  of  the  com- 
manding officer  of  the  old  station. 

(Asst.  Comp.  W.  W.  Warwick,  June  13,  1913.) 


TIME:   Computation   of,   for  purposes   of  pay;  pay   for   the   31st   day   of   a 
month. 

An  officer  of  the  Medical  Reserve  Corps  was  called  into  active 
service  pursuant  to  the  act  of  April  23,  1908,  for  only  one  day,  that 
being  the  31st  day  of  the  month.  Section  9  of  said  act  (35  Stat., 
68),  provides: 

"That  officers  of  the  Medical  Reserve  Corps  when  called  upon 
active  duty  in  the  service  of  tlie  ITnited  States,  as  provided  in  section 
eight  of  this  act,  shall  be  subject  to  the  laws,  regulations,  and  ordoi-s 
for  the  government  of  the  Regular  Ai-my,  and  during  the  period 
of  such  service  shall  be  entitled  to  the  pay  and  allowances  of  iirst 
lieutenants  of  the  Medical  Corps  *  *  *•" 
93668°— 17 16 


242        DIGEST  OF   OPINIONS   OF   THE    JUDGE    ADVOCATE   GENERAL, 

Section  6  of  the  sundry  civil  appropriation  act  of  June  30,  1906 
(34  Stat,  763),  provides  that: 

"  Hereafter,  where  the  compensation  of  any  person  in  the  service 
of  the  United  States  is  annual  or  monthly  the  following  rules  for 
division  of  time  and  computation  of  pay  for  services  rendered  are 
herby  established :  Annual  compensation  shall  be  divided  into  twelve 
equal  installments,  one  of  Avhich  shall  be  the  pay  for  each  calendar 
month;  and  in  making  payments  for  a  fractional  part  of  a  month 
one-thirtieth  of  one  of  such  installments,  or  of  a  monthly  compensa- 
tion, shall  be  the  daily  rate  of  pay.  For  the  purpose  of  computing 
such  compensation  and  for  computing  time  for  services  rendered 
during  a  fractional  part  of  a  month  in  connection  with  annual  or 
monthly  compensation,  each  and  every  month  shall  be  held  to  consist 
of  thirty  days,  without  regard  to  the  actual  number  of  days-  in  any 
calendar  month,  thus  excluding  the  thirty-first  of  any  calendar 
month  from  the  computation  and  treating  February  as  if  it  actually 
had  thirty  days.  Any  person  entering  the  service  of  the  United  States 
during  a  thirty-one  day  month  and  serving  until  the  end  thereof  shall 
be  entitled  to  pay  for  that  month  from  the  date  of  entry  to  the 
thirtieth  day  of  said  month,  both  days  inclusive;  and  any  person 
entering  said  service  during  the  month  of  February  and  serving  until 
the  end  thereof  shall  be  entitled  to  one  month's  pay,  less  as  many 
thirtieths  thereof  as  there  were  days  elapsed  prior  to  date  of  entry : 
Provided^  That  for  one  day's  unauthorized  absence  on  the  thirty- 
first  day  of  any  calendar  month  one  day's  pay  shall  be  forfeited." 

Held^  that  although  the  employment  of  a  person  in  the  service  of 
the  United  States  at  an  annual  or  monthly  compensation  upon  the 
31st  day  of  a  month  was  not  forbidden  by  law,  he  could  not  legally 
be  paid  for  such  day,  and  that  the  officer  in  this  ease  could  not  be 
paid  for  the  31st  day  of  the  month  :    13  Comp.  Dec,  75. 

(Asst.  Comp.  W.'W.  Warwick,  June  23,  1913.) 


TRAVELING  EXPENSES:   Hire  of  automobile  for  travel  of  an  Army  oflScer 
within  a  limited  area. 

The  Auditor  for  the  War  Department  disallowed  payments  for 
services  rendered  April  28  and  29  and  June  6  and  7,  1912,  in  fur- 
nishing automobile  transportation  to  a  department  commander  for 
the  purpose  of  obtaining  topographical  and  other  information  in  the 
theater  of  Army  maneuvers  within  a  limited  area,  and  at  points  in- 
accessible by  common  carrier,  and  where  horses  could  not  be  provided 
and  used  without  additional  expense  in  excess  of  the  amount  charged 
for  the  automobiles.  The  officer  was  in  a  mileage  status  at  the  time 
the  journeys  were  performed,  but  no  mileage  was  paid  for  such 
journeys. 

Held.,  that  the  officer  being  in  a  mileage  status  was  entitled,  for  all 
travel  performed  by  him  under  his  orders,  only  to  the  mileage  allowed 
by  law,  and  payment  for  automobile  hire  was  unauthorized. 

(Asst.  Comp".  W.  W.  Warwick,  June  27,  1913.) 


DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL.        243 

OPINIONS  OF  THE  ATTORNEY  GENERAL. 
(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

EIGHT-HOUR  LAW:   Public-building  contracts;  appropriations  made  be- 
fore the  passag'e  of  the  act. 

The  act  of  June  19,  1912,  commonly  known  as  the  ei^ht-liour  law, 
contains  at  the  end  of  section  2  the  following  qualification  (37  Stat 
138)  :  _ 

"  Nothing  in  this  act  shall  be  construed  to  *  *  *  apply  to  con- 
tracts which  have  been  or  may  be  entered  into  under  the  provisions 
of  appropriation  acts  approved  prior  to  the  passage  of  this  act." 

Held^  that  Mdiere  Congress  has  fixed  the  limit  of  cost  of  a  public 
building  and  made  a  partial  appropriation  therefor  prior  to  June  19, 
1912,  but  subsequently  thereto  has  increased  the  limit  of  cost,  the 
contract  for  the  erection  of  said  building,  whether  entered  into  be- 
fore or  after  the  time  when  said  limit  of  cost  was  so  increased,  wag 
excepted  from  the  operation  of  section  1  of  the  eight-hour  law  of 
June  19,  1912  (37  Stat.,  137). 

(30  Op.  150,  Apr.  19,  1913.) 


EMPLOYEES:  Compensation  act;  jurisdiction  of  the  Secretary  of  Labor. 

The  act  of  May  30,  1908  (35  Stat.,  55G),  providing  for  compensa- 
tion to  employees  for  injuries  received  in  the  Government  service 
under  certain  conditions,  contains  the  provision  that  the  final  decision 
of  claims  arising  under  said  act  shall  lie  with  the  Secretary  of  Com- 
merce and  Labor,  under  regulations  prescribed  by  him.  Section  3  of 
the  act  of  March  4,  1912  (37  Stat.,  737),  creating  the  Department  of 
Labor,  provides  that  certain  named  "  offices,  bureaus,  divisions,  and 
other  branches  of  the  public  service,"  then  and  theretofore  under  the 
jurisdiction  of  the  Department  of  Commerce  and  Labor,  and  all  that 
pertain  to  the  same,  including  the  Bureau  of  Labor  and  the  office  of 
the  Commissioner  of  Labor,  shall  be  transferred  from  the  Depart- 
ment of  Commerce  and  Labor  to  the  Department  of  Labor,  and  shall 
thereafter  remain  under  the  jurisdiction  and  supervision  of  the 
last-named  department. 

Held^  that  final  authority  to  determine  claims  arising  under  tlie 
workmen's  compensation  act  of  May  30,  1908,  supra^  as  amended, 
rests  in  the  Secretary  of  Labor. 

(30  Op.  145,  Apr.  *3,  1913.) 

PUBLIC  PROPEBTY:  Leasing  of  water  power  created  by  the  construction 
of  Governinent  works. 

The  United  States  erected  a  lock  and  dam  on  the  Black  Warrior 
River,  Ala.,  and  the  question  arose  as  to  the  right  to  lease  the  water 
power  incidentally  created  thereby. 

HeM,  that,  assuming  that  the  Federal  Government  had  the  right 
to  dispose  of  surplus  water  created  by  a  dam  erected  by  it  in  improv- 
ing the  navigation  of  a  navigable  water  of  the  United  States  within 
a  State,  it  was  manifest  that,  under  the  Constitution  (Art.  IV,  sec.  3), 
such  right  of  disposal  resided  solely  in  Congress,  and  that  the  Sec- 
retary of  War  had  no  right,  under  existing  legislation,  to  enter  into 
an  agreement  for  leasing  water  power  created  by  sjiid  lock  and  dani. 

(30  Op.  154,  Apr.  21,  1913.) 


244       DIGEST  OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEEAL. 

DECISIONS  OF  THE  COURTS. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

CONTRACTORS'  BONDS:   Suits  on;  jurisdiction  of  courts. 

The  act  of  August  13,  1894  (28  Stat.,  278),  requires  bonds  from 
Government  contractors  for  the  protection  of  persons  furnishing 
labor  and  material  for  the  construction  of  public  works  upon  which 
they  may  be  engaged,  giving  a  right  of  action  upon  the  bond  in  favor 
of  such  persons.  The  act  contains  no  direction  respecting  where  the 
suit  upon  the  bond  of  the  contractor  shall  be  brought  or  what  court 
"shall  take  jurisdiction.  The  act  of  February  24,  1905  (33  Stat.,  811) , 
amends  the  act  of  August  13,  1894,  by  reenactment,  making  many 
important  changes  and  specifying  that  only  one  action  shall  be 
brought  upon  a  bond  and  fixing  the  time  when,  and  the  court  in 
which,  said  action  shall  be  brought.  An  action  was  brought  upon 
a  contractor's  bond  executed  on  May  24,  1904,  in  the  court  authorized 
by  section  5  of  the  act  of  August  13,  1894  (28  Stat.,  280),  regulating 
surety  companies  which  execute  bonds  required  by  the  laws  of  the 
United  States.  The  surety  company  entered  a  plea  to  the  jurisdic- 
tion of  the  court,  contending  that  as  the  work  done  and  materials 
furnished  were  done  and  furnished  after  the  passage  of  the  act  of 
February  24,  1905,  the  action  should  have  been  commenced  in  the 
district  pointed  out  in  the  latter  act.  A  demurrer  to  the  plea  was 
sustained. 

Held^  that  the  court  below  was  clearly  right  in  upholding  its 
jurisdiction,  for  to  hold  otherwise  it  would  be  necessary  to  construe 
the  act  of  1905  as  retroactive  in  all  cases  Avhere  work  had  been  done 
after  its  passage  on  contracts  executed  prior  to  said  act. 

{TitU  Gnaranty  and  Surety  Co.  v.  United  States,  U.  S.  Supreme 
Court,  May  12,  1913.) 


INSURRECTION   AND    MARTIAL    LAW:   Constitutionality    of    executive 
acts  after  declaration  of  a  State  war. 

Refering  to  the  insurrectionary  conditions  existing  in  the  State 
of  West  Virginia,  the  Supreme  Court  of  Appeals  of  that  State  laid 
down  the  following  principles: 

1.  The  principles  and  conclusions  of  law  announced  in  State  ex 
rel.  Mays  v.  Brou-n^  Warden,  and  State  e.e  rel.  Nance  y.  Brown, 
Warden  (W.  D.  Bui.  17.  p.  24,  c.  s.),  having  been  reexamined,  after 
thorough  argument  and  consideration,  are  approved  and  reaffirmed. 

2.  A  state  of  war  having  been  declared  in  any  part  of  the  State  on 
an  occasion  of  insurrection,  the  war  power  of  the  State  in  the  form 
of  military  rule,  defined  by  the  usages  of  nations,  prevails  in  the 
territory  subject  to  the  proclamation,  excluding  the  civil  powers  as 
to  offenses,  if  the  executive  so  order,  while  the  peace  powers  of  gov- 
ernment under  civil  law  prevail  elsewhere. 

3.  In  such  case  the  governor  may  cause  to  be  apprehended,  in  or 
out  of  the  military  zone,  all  persons  who  shall  willfully  give  aid, 
support,  or  information  to  the  insurgents,  and  detain  or  imprison 
them,  pending  the  suppression  of  the  insurrection. 


DIGEST    OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       245 

4.  Sections  6,  7,  8,  and  9,  of  chapter  14  of  the  code,  authorizing 
such  arrest  and  imprisonment,  do  not  vioUite  the  provisions  of  the 
State  and  Federal  constitutions,  inhibiting  deprivation  of  liberty 
without  a  trial  by  jury,  and  are  constitutional  and  valid. 

5.  Being  so,  such  an  arrest,  detention,  and  imprisomnent,  by  virtue 
of  said  statute,  are  effected  by  due  process  (vf  law  witliin  the  mean- 
ing of  section  10  of  Article  III  of  the  Constitution  of  this  State 
and  the  fourteenth  amendment  to  the  Constitution  of  the  United 
States. 

{In  re  Mary  Jones  and  others^  Mar.  21,  1913.) 


PUBLIC  PROPERTY:   Recovery  of  property  alleged  to  belong  to  the  United 
States. 

An  action  of  replevin  was  brought  for  the  recovery  of  certain 
soldiers'  clothing  siezed  under  the  orders  of  officers  of  the  United 
States  Army.  It  was  stipulated  that  certain  of  the  property  be- 
longed to  the  plaintiff,  but  that  other  of  said  property,  '"consisting 
of  clothes  and  military  outfit,"  had  been  furnished  prior  to  said 
seizure  by  the  United  States  to  certain  of  its  soldiers.  Aside  from 
this  stipulation,  the  plaintiff'  offered  no  evidence  of  title  or  right  to 
possession  of  the  property. 

Held^  that  an  admission  that  certain  clothing  was  "  furnished  "  by 
the  United  States  to  its  soldiers,  raised  the  presumption  that  the 
United  States  then  had  title  thereto,  and  such  title  was  not  shown  to 
have  been  divested  merely  because  the  clothing  was  so  furnished. 

Held  fuHher^  that  the  right  of  recaption  is  a  part  of  the  conmion 
law  of  the  Philippine  Archipelago,  that  it  belongs  to  any  citizen 
under  proper  restrictions,  and  that  a  fortiori  it  belongs  to  the  sover- 
eign poAver  and  its  agents.  It  was  accordingly  adjudged  that  the 
plaintiff  should  recover  none  of  the  property  described  in  the  stipu- 
lation as  having  been  furnished  by  the  United  States  to  certain  of 
its  soldiers. 

{Tan  Te  v. ./.  FranWm  Bell  et  al.,  Court  of  First  Instance,  District 
of  Manila,  Dec.  14,  1912.) 


BULLETIN  27. 

Bulletin  1  WAR  DEPARTMENT, 

No.  27.     J  Washington,  August  11,  WIS. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General  of 
the  Army  for  the  month  of  July,  1913,  and  of  certain  decisions  of  the 
Comptroller  of  the  Treasury,  and  of  an  opinion  of  the  Attorney  Gen- 
eral, is  published  for  the  information  of  the  service  in  general. 
[A.  G.  O.] 
By  order  of  the  Secretary  of  War: 

W.  W.  WOTHERSPOON, 

Major  General,  Acting  Chief  of  Staff. 
Official  : 

H.  O.  S.  HEISTAND, 

Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

APPROPRIATIONS:   Special;    National    and    International   Shooting    Com- 
petition, Camp  Perry,  Ohio. 

An  opinion  was  requested  as  to  whether  or  not  the  cost  of  certain 
plumbing  supplies  required  for  use  at  the  National  and  International 
Shooting  Competition,  1913,  at  Camp  Perry,  Ohio,  should  be  paid 
for  from  the  special  appropriation  therefor  contained  in  the  Army 
appropriation  act  of  March  2,  1913  (37  Stat.,  711),  or  from  the  gen- 
eral appropriation  for  waters  and  sewers. 

Held,  that  the  former  appropriation  was  evidently  intended  to 
cover  all  proper  expenses  in  connection  with  said  International  Rifle 
Shooting  Competition,  and  that  the  cost  of  said  plumbing  supplies 
should  be  charged  to  said  appropriation,  and  not  to  the  general  ap- 
propriation for  waters  and  sewers. 

(5-500,  J.  A.  G.,  July  5,  1913.) 


APPROPRIATIONS:   Lump-sum;    payment    for    personal    services    at    in- 
creased rates. 

Section  7  of  the  act  of  August  26,  1912  (37  Stat.,  626),  as  amended 
by  section  4  of  the  act  of  March  4,  1913  (37  Stat.,  790),  prohibited 
the  payment  for  personal  services  from  the  lump-sum  appropriations 
mentioned  in  the  former  act  at  rates  in  excess  of  those  paid  for  the 
same  or  similar  services  during  the  preceding  fiscal  year.  The 
amendatory  act  further  provided — 

"That  this  section  shall  not  apply  to  mechanics,  artisans,  their 
helpers  and  assistants,  laborers,  or  any  other  employees  whose  duties 
are  of  similar  character  and  required  in  carrying  on  the  various 
manufacturing  or  constructing  operations  of  the  government." 

246 


DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE   GENEUAL.       247 

It  was  desired  to  increase  the  compensation  of  the  foreman  in  the 
sponging  and  shrinking  plant  at  Phihidelphia,  Pa.,  beyond  the 
amount  he  had  received  during  the  preceding  hscal  year,  lie  was 
described  as  a  foreman  of  laborers  but  was  also  described  as  the  only 
employee  of  his  class. 

Held^  that  while  under  the  eight-hour  law  of  August  1,  1802  (27 
Stat.,  y40),  a  foreman  of  laborers  was  held  not  to  come  within  the 
terms  "laborers  and  mechanics"  as  used  in  said  statute,  the  said  law 
being  penal  in  its  nature  (Dig.  Op.,  J.  A.  G.,  1912,  p.  593,  VII),  a 
foreman  within  the  meaning  of  section  4  of  the  act  of  March  4,  11)13, 
should  be  classed  with  the  particular  employees  whose  work  he  is 
called  upon  to  oversee,  and  that  such  an  employee  was  excepted  from 
the  general  provisions  of  section  7  of  the  act  of  August  2G,  1912. 
Ileld^  therefore,  that  the  proposed  increase  could  lawfully  be  made. 

(5-075,  J.  A.  G.,  July  24,  1913.) 


BURIAL  EXPENSES:   General  prisoners. 

On -application  for  opinion  as  to  whether  the  cost  of  burying  a  gen- 
eral prisoner  could  be  paid  from  the  appropriation  "  Contingencies 
of  the  Army,"  attention  being  invited  to  the  opinion  of  this  office  of 
May  22,  1913  (W.  D.  Bui.  No.  18,  p.  4,  c.  s.),  to  the  effect  that  there 
is  no  appropriation  under  the  control  of  the  War  Department  from 
which  there  could  be  paid  the  expenses  of  preparing  the  remains  of  a 
deceased  general  prisoner  for  shipment  to  his  relatives,  it  was  ex- 
plained that  the  opinion  cited  had  reference  to  the  expenses  incident 
to  the  preparation  of  the  remains  of  a  general  prisoner  for  shipment 
to  his  relatives,  and  did  not  extend  to  the  necessary  expenses  of  pre- 
paring the  body  for  burial  at  Government  expense. 

Eeld^  that  in  the  absence  of  a  specific  appropriation  available  for 
the  purpose,  and  as  the  expense  was  incurred  as  an  incident  tti  the 
administration  of  the  Army,  the  same  was  properly  chargeable  to 
the  appropriation  for  "  Contingencies  of  the  Army,"  reference  beuig 
made  to  the  decision  of  the  comptroller  published  in  11  Comptroller's 
Decisions,  789,  790.  Held  further^  that  the  question  was  sinijily  one 
of  the  decent  and  j:) roper  disposition  of  the  remains  of  a  general  pris- 
oner, the  possession  of  which  is  cast  upon  the  Government;  and  that 
the  quartermaster  in  the  interest  of  economy  would  be  justified  in 
making  any  reasonable  arrangement  with  tlie  relatives  of  the  de- 
ceased' whereby  the  cost  of  this  service  to  the  Government  might  be 
reduced. 

(30-824.2,  J.  A.  G.,  July  29,  1913.) 


CIVIIi  SERVICE:   Reduction  or  discharge  of  honorably  discharged  soldiers 
for  inefficiency;  system  of  efficiency  ratings. 

Section  4  of  the  legislative,  executive,  and  judicial  appropriation 
act  of  August  23,  1912  (37  Stat.,  413),  provides  that— 

"The  Civil  Service  Commission  shall,  subject  to  the  approval  ()1 
the  President,  establish  a  sy.stem  of  efficiency  ratings  for  the  classi- 
fied service  in  the  several  executive  departments  of  the  District  of 
Columbia  based  upon  records  kept  in  each  department  and   iiuie- 


248        DIGEST   OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL. 

pendent  establishment  with  such  frequency  as  to  make  them  as 
nearly  as  possible  records  of  fact.  Such  system  shall  provide  a 
minimum  rating  of  efficiency  which  must  be  maintained  by  an  em- 
ployee before  he  may  be  promoted;  it  shall  also  provide  a  rating 
below  which  no  employee  may  fall  without  being  demoted;  it  shall 
further  provide  for  a  rating  below  which  no  employee  may  fall  with- 
out being  dismissed  for  inefficiency.  All  promotions,  demotions,  or 
dismissals  shall  be  governed  by  provisions  of  the  civil  service  rules. 
Copies  of  all  recorcls  of  efficiency  shall  be  furnished  by  the  depart- 
ments and  independent  establishments  to  the  Civil  Service  Commis- 
sion for  record  in  accordance  with  the  provisions  of  this  section: 
Provided^  That  in  the  event  of  reductions  being  made  in  the  force  in 
any  of  the  executive  departments  no  honorably  discharged  soldier  or 
sailor  whose  record  in  said  department  is  rated  good  shall  be  dis- 
charged or  dropped,  or  reduced  in  rank  or  salary."     *     *     * 

Upon  a  request  for  an  opinion  as  to  whether  the  proviso  regarding 
the  discharge  or  reduction  of  honorably  discharged  soldiers,  etc., 
was  operative  at  that  time  or  would  go  into  operation  only  after  the 
Civil  Service  Commission  should  have  established,  with  the  approval 
of  the  President,  a  system  of  efficiency  ratings — 

Ileld^  that  the  proviso  regarding  discharges  and  reductions  follow- 
ing the  provision  for  the  establishment  of  a  system  of  efficiency  rat- 
ings, should  be  construed  with  reference  to  such  provision  with  which 
it  was  associated  and  limited  by  the  subject  matter  in  the  mind  of 
Congi'ess,  and  that  so  construed  the  proviso  would  become  operative 
only  when  the  system  of  efficiency  ratings  for  the  civil  service  in  the 
several  executive  departments  in  the  District  of  Columbia  should  be 
established  in  conformity  with  the  provisions  of  the  same  section. 

(16-112.1,  J.  A.  G.,  July  2,  1913.) 


CONTRACTS:   Acceptance  of  work  before  completion  according  to  contract 
and  taking  a  bond;  supplemental  contract. 

A  contract  was  made  for  the  construction  of  certain  roads,  walks, 
gutters,  etc.,  at  the  Presidio  of  San  Francisco,  Cal.  When  the  work 
had  been  completed  it  was  found  that  the  specifications  had  not 
been  complied  with  in  a  certain  particular  and  that  the  pavement 
in  certain  sections  was  unsatisfactory,  whether  from  the  failure  to 
so  comply  with  the  specifications  or  not  did  not  appear.  The  con- 
tractor proposed  by  way  of  compromise  to  relay  the  line  surface  of 
the  unsatisfactory  pavement  with  material  prepared  in  accordance 
with  the  specifications  and  to  gH^e  a  bond  to  relay  other  portions 
where  the  specifications  had  not  been  complied  with,  should  they 
prove  at  any  time  within  two  years  to  be  unsatisfactory.  It  was 
reported  that  the  Government  would  not  be  injured  by  the  arrange- 
ment. 

HeM.,  that  there  was  no  authority  for  waiving  the  conditions  of 
the  contract,  and  for  taking  a  bond  to  replace  any  portion  of  the 
w^ork  which  did  not  prove  satisfactory,  without  a  consideration  to 
the  Government,  but  that  if  it  was  to  the  interest  of  the  Government 
to  accept  the  work,  as  finished,  a  supplemental  contract  might  be 
entered  into  to  accomplish  the  desired  end. 

(76-420,  J.  A.  G.,  July  2,  1913.) 


DIGEST   OF   OPINIONS   OF    THE    JUDGE    ADVOCATE   GENERAL.       249 

DETACHED   SERVICE:   Detail  to   the  Philippine   Constabulary;    rank. 

The  Army  appropriation  act  of  Au^ist  24,  1912  (87  Stat.,  571), 
provides  generally  that  no  officer  holding  a  connnission  in  the  line 
of  the  Army  below  the  rank  of  major  who  "  shall  not  have  been 
actually  present  for  duty  for  at  least  two  of  the  last  ])receding  six 
years  with  a  troop,  battery,  or  company,  of  that  branch  of  the  Army 
in  which  he  shall  hold  said  commission,"  shall  be  detached  or  be 
permitted  to  remain  detached  from  said  organization  for  duty  of 
any  kind;  but  it  is  further  provided  therein,  as  follows: 

"Nor  shall  anything  in  this  proviso  be  hold  to  ai)ply  to  tlie  de- 
tachment or  detail  of  officers  for  duty  *  *  *  j^  the  Philippine 
Co^jstabulary  until  the  firs!  day  of  January,  nineteen  hundred  and 
fourteen." 

The  further  provision  was  added : 

"And  hereafter  no  officer  holding  a  permanent  commission  m  tlie 
Army  with  rank  below  that  of  major  shall  be  detailed  *  *  * 
as  chief  or  assistant  chief  (director  or  assistant  director)  of  the 
Philippine  Constabulary  and  no  other  officers  of  the  Army  shall  here- 
after be  detailed  for  duty  with  the  said  constabulary,  except  as 
specifically  provided  by  law." 

Tleld^  that  the  two  provisions  limiting  details  Avere  distinct,  the 
first  prescribing  a  rule  of  eligibility  based  on  service  and  which  was 
not  to  become  effective  as  to  the  Philippine  Constabulary  until 
January  1,  1914,  and  the  other  prescribing  a  rule  of  eligibility  based 
upon  rank,  which  became  immediately  effective.  IlehL  therefore^ 
that  a  captain  of  cavalry  could  not  be  detailed  as  chief  of  the  Philip- 
pine Constabulary  with  the  rank,  pay,  and  allowances  of  a  brigadier 
general. 

(92-412,  J.  A.  G.,  July  3,  1913.) 


DISCHARGE:   Of  enlisted  men;  discharge  without  honor;  finality. 

A  soldier  plead  guilty  in  a  State  court  to  murder  in  the  second 
degree  and  was  sentenced  to  imprisonment  in  a  State  prison  foi-  10 
years.  He  was  thereupon  discharged  from  the  Army  without  honor. 
In  the  State  prison  he  developed  mania  and  mental  aberration,  but 
after  an  operation  by  which  a  depressed  portion  of  his  skull  was 
raised,  these  symptoms  disappeared  and  he  became  rational.  The 
depression  was  the  result  of  an  accident  which  occured  to  him  while 
in  the  service.  He  applied  to  have  the  discharge  without  honor 
substituted  by  an  honorable  discharge  upon  the  ground  of  his  mental 
aberration  which  was  due  to  the  skull  depression. 

Field,  that  it  could  not  be  assumed  that  if  the  Secretary  of  War 
had  had  all  the  facts  before  him  that  then  appeared,  his  action 
would  have  been  other  than  it  was:  but  held  fvrther,  that  the  Secre- 
tary having  officially  acted  in  the  matter,  his  action  became  final  an<l 
could  not  then  be  revoked. 

(28-128  J.  A.  G.,  July  2,  1913.) 


INDIANS:   Support  of;  cutting  and  using  hay  from  a  military  reservation. 
It  was  requested  on  behalf  of  the  Cree  Indians  that  they  be  per- 
mitted to  cut  hay  upon  a  military  reservation  for  their  use  during 


250       DIGEST  OP   OPINIONS  OF    THE    JUDGE   ADVOCATE   GENERAL. 

the  coming  winter,  it  being  understood  that  the  hay  was  necessary 
for  their  use  and  support. 

Held,  that  while  there  was  no  authority  of  law  for  granting  per- 
mission to  Indians  to  cut  hay  from  the  reservation  and  take  title 
to  the  same,  such  permission  might  be  granted  them  to  cut  hay  for 
their  own  use  and  support;  that  the  Government  sustained  toward 
the  Indians  a  different  relation  from  that  which  it  sustained  to 
citizens  in  general;  and  that  the  use  of  the  hay  for  their  necessary 
support  might,  therefore,  be  regarded  as  a  public  use. 

(80-816.1,  J.  A.  G.,  July  9,  1913.) 


INSTBTJCTION :   Schools  at  Army  posts  for  children. 

Schools  for  officers  are  established  according  to  Army  Regula- 
tions "  for  the  instruction  of  officers  on  the  subjects  pertaining  to 
the  performance  of  their  active  duties,"  and  the  current  appropria- 
tion therefor  reads  "equipment  of  officer's  schools,  military  posts," 
etc.  The  establishment  of  schools  for  enlisted  men  at  Army  posts  is 
authorized  by  section  431,  Revised  Statutes.  The  equipment  and 
maintenance  of  these  schools  are  authorized  from  year  to  year  in  ap- 
propriation acts  for  the  support  of  the  Army.  Upon  request  for 
opinion  as  to  whether  any  appropriation  of  the  Guartermaster  Corps 
was  available  for  the  estbalishment,  equipment,  and  maintenance  of 
schools  for  children  at  Army  posts — 

Held^  that  the  appropriations  above  named  were  limited  to  schools 
for  officers  and  enlisted  men,  respectively,  and  that  there  was  no  law 
which  would  authorize  the  establishment  and  maintenance  by  the 
War  Department  of  schools  for  children  at  Army  posts. 

(80-304,  J.  A.  G.,  July  21,  1913.) 


MEDIC Ali   DEPARTMENT:   Acting    dental    surgeon;    tenure    of    office    and 
discharge  of. 

The  act  of  March  3,  1911  (36  Stat.,  1054),  provides  for  a  dental 
corjjs  to  be  attached  to  the  Medical  Department  of  the  Army,  con- 
sisting of  dental  surgeons  and  acting  dental  surgeons,  and  further 
provides  that — 

"All  original  appointments  to  the  dental  corps  shall  be  as  acting 
dental  surgeons,  who  shall  have  the  same  official  status,  pay,  and 
allowances  as  the  contract  dental  surgeons  now  authorized  by  law. 
Acting  dental  surgeons  who  have  served  three  years  in  a  manner 
satisfactory  to  the  Secretary  of  War  shall  be  eligible  for  appointment 
as  dental  surgeons,  and,  after  passing  in  a  satisfactory  manner  an 
examination  which  may  be  prescribed  by  the  Secretary  of  War,  may 
be  commissioned  with  the  rank  of  first  lieutenant  in  the  dental  corps 
to  fill  the  vacancies  existing  therein     *     *     *." 

An  acting  dental  surgeon  was  appointed  November  15,  1912,  and 
was  thereafter  absent  from  duty  by  reason  of  sickness  not  contracted 
in  line  of  duty,  and  an  opinion  was  desired  as  to  whether  or  not  his 
services  could  be  dispensed  with  if  deemed  unsatisfactory  before  the 
term  of  three  years  had  expired,  at  the  end  of  which  he  would  be 
eligible  for  appointment  as  a  dental  surgeon  if  his  services  were 
satisfactory. 


DIGEST   OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL.        251 

Ileld^  that  as  the  law  provided  that  acting  dental  surgeons  should 
have  the  same  official  status  as  contract  dental  surgeons  had  at  tlie 
time  of  the  passage  of  the  act,  and  as  such  contract  dental  surgeons 
were  employed  for  a  term  of  three  years  under  a  contract  which 
might  be  sooner  annulled  for  certain  reasons  specified  in  the  Army 
Kegulations,  the  appointment  of  acting  dental  surgeon  as  now  pro- 
vided by  law  might  be  annulled  or  revoked  in  like  manner,  and  tiiat 
if  the  services  of  this  particular  acting  dental  surgeon  were  such  as 
to  bring  him  within  any  of  the  reasons  for  which  the  contract  of  ;i 
contract  dental  surgeon  might  have  been  annulled,  his  appointment 
might  be  revoked  and  his  services  dispensed  with. 

(6-227.3,  J.  A.  G.,  July  18,  1913.) 


MILITARY  RESERVATIONS:  Erection  of  a  memorial  cannou  thereon. 

A  chapter  of  the  Daughters  of  the  American  Revolution  desired 
permission  to  erect  a  memorial,  consisting  of  a  cannon  weighing 
about  2,000  pounds,  suitably  inscribed  and  mounted,  upon  a  portion 
of  a  United  States  military  reservation,  for  the  purpose  of  com- 
memorating a  historical  event  which  took  place  near  that  spot  during 
the  American  Revolution.  The  work  would  not  interfere  with  the 
use  of  the  reservation  for  military  purposes. 

Held,  that,  if  such  were  the  object,  the  memorial  would  serve  a 
public  purpose  and  would  not  be  in  the  nature  of  a  permanent  im- 
provement in  which  private  rights  might  be  acquired,  and  that  per- 
mission might  be  granted  for  its  erection  and  maintenance.  It  was 
advised,  however,  that  the  design  and  inscription  should  be  subject 
to  the  approval  of  the  Chief  of  Engineers. 

(80-438,  J.  A.  a,  July  11,  1913.) 


MILITARY  TELEGRAPH  LINES:   Charging  tolls  on  messages  from  other 
departments  of  the  Government. 

The  act  of  May  26,  1900  (31  Stat,  206),  establishing  the  Washing- 
ton-Alaska military  cable  and  telegraph  system,  provides: 

"  For  the  purpose  of  connecting  headquarters.  Department  of 
Alaska,  at  St.  Michael,  by  military  telegraph  and  cable  lines  with 
other  militaiy  stations  in  Alaska'  *  *  "^  \  Provided,  That  com- 
mercial business  may  be  done  over  these  military  lines  under  such 
conditions  as  may  be  deemed,  by  the  Secretary  of  War,  ecjuitable 
and  in  the  public  interests,  all  receipts  for  such  commei'cial  business 
shall  be  accounted  for  and  paid  into  the  Treasury  of  the  United 
States     *     *     *." 

Section  2  of  the  act  of  October  1,  1890   (26  Stat.,  653),  i)rovides 

that — ' 

"The  Chief  Signal  Officer  shall  have  charge,  under  the  direction 
of  the  Secretary  of  War  of  *  *  *  the  construction,  repair,  and 
operation  of  military  telegraph  lines    *    *    *." 

Held,  that  the  effect  of  the  language  of  the  above  acts  was  to  make 
said  lines  an  instrumentality  of  the  War  Department,  and  that  they 
can  not  be  transferred  to  another  department  without  legislative 
authority.     Held  further,  that  there  was  nothing  in  the  law  that 


252       DIGEST  OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENEEAL. 

would  prohibit  the  War  Department  from  charging  tolls  on  mes- 
sages from  other  departments,  and  transmitted  over  said  system  on 
official  business,  and  the  distribution  of  the  tolls  to  the  credit  of  the 
appropriations  involved,  on  the  principle  that  where  supplies  are 
furnished  by  one  department  or  branch  of  the  Government  to  an- 
other, the  appropriations  from  which  the  supplies  are  furnished 
should  be  reimbursed  by  the  department  or  branch  of  the  Govern- 
ment to  which  they  are  furnished. 
(80-471,  J.  A.  G.,  July  24,  1913.) 


NATIONAL  CEMETERIES:   Dedication  of  roads  over. 

A  petition  was  presented  for  the  dedication  or  setting  aside  of  a 
strip  of  land  along  the  north  and  west  sides  of  a  national  cemetery 
at  Nashville,  Tenn.,  for  the  construction  thereon  of  public  streets. 
It  appeared  that  the  primary  object  in  opening  these  streets  was  to 
make  the  adjoining  properties  more  valuable  for  resident  purposes. 

Section  6  of  the  act  of  July  5,  1884  (23  Stat.,  104),  provides  that— 

"  The  Secretary  of  War  shall  have  authority,  in  his  discretion,  to 
i:)ermit  the  extension  of  state,  county,  and  territorial  roads  across 
military  reservations;  to  permit  the  landing  of  ferries,  the  erection 
of  bridges  thereon ;  and  permit  cattle,  sheep,  or  other  stock  animals 
to  be  driven  across  such  reservation,  whenever  in  his  judgment  the 
same  can  be  done  without  injury  to  the  reservation  or  inconvenience 
to  the  military  forces  stationed  thereon." 

Held,  that  even  if  the  national  cemetery  could  be  regarded  as  a 
military  reservation  within  the  meaning  of  said  act,  the  use  desired 
could  not  be  considered  as  an  extension  of  a  state  or  county  road 
through  the  reservation  as  contemplated  by  said  act,  and  being  in 
the  nature  of  an  easement  in  the  land,  the  privilege  could  not  bo 
granted  by  means  of  a  revocable  license  nor  by  means  of  a  lease. 

(80-412,  J.  A.  G.,  July  15,  1913.) 


NAVIGABLE   WATERS:   Structures   over   those   lying   wholly   within   the 
limits  of  a  State;  construction  before  approval  of  plans. 

Section  9  of  the  act  of  March  3,  1899  (30  Stat..  1151),  provides: 
"  That  it  shall  not  be  lawful  to  construct  or  commence  the  construc- 
tion of  any  bridge,  dam,  dike,  or  causeway  over  or  in  any  port,  road- 
stead, haven,  harbor,  canal,  navigable  river,  or  other  navigable  water 
of  the  United  States  until  the  consent  of  Congress  to  the  building 
of  such  structures  shall  have  been  obtained  and  until  the  plans  for 
the  same  shall  have  been  submitted  to  and  approved  by  the  Chief  of 
Engineers  and  by  the  Secretary  of  War:  Proinded^  That  such  struc- 
tures may  be  built  under  authority  of  the  legislature  of  a  state  across 
rivers  and  other  waterways  the  navigable  portions  of  which  lie  wholly 
within  the  limits  of  a  single  state,  provided  the  location  and  plans 
thereof  are  submitted  to  and  approved  by  the  Chief  of  Engineers 
and  by  the  Secretary  of  War  before  construction  is  commenced." 

The  county  authorities  of  a  state  submitted  plans  for  the  construc- 
tion of  a  bridge  across  a  stream  the  navigable  portion  of  which  was 
presumably  entirely  within  the  state,  which  plans  were  approved 


DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL,       253 

by  the  War  Deimrtment.  Thereafter  said  authorities  submitted  re- 
Aised  and  entirely  diflerent  phms  and  were  informed  that  the  same 
would  be  approved  and  the  old  plans  canceled  when  bids  for  the  con- 
struction of  the  bridge  were  actually  received.  The  authorities,  how- 
ever, proceeded  to  erect  the  bridge  according  to  the  revised  plan, 
which  had  not  been  approved  but  which  provided  for  a  better  bridge 
for  navigation  interests  than  the  one  contemplated  in  the  approved 
plans. 

Held^  that  the  bridge  Avas  technically  an  unlawful  structure,  and 
that  the  department  had  no  authority  to  waive  objections  to  its  m\- 
lawful  character.  It  was,  however,  recommended  that  the  local  engi- 
neer officer  be  informed  that  the  Chief  of  Engineers  and  the  Secreta'i-y 
of  War  are  without  authority  to  approve  plans  submitted  aftei-  the 
construction  has,  as  in  this  case,  been  completed;  that  inasmuch  as 
the  bridge  was  not  constructed  in  accordance  with  plans  approved 
as  required  by  federal  statutes,  the  department  can  not  recognize 
it  as  a  lawful  structure;  that  while  the  department  is  without  autlior- 
ity  to  make  formal  waiver  of  objections  to  the  construction  and  main- 
tenance of  this  bridge,  there  is  nevertheless  no  present  apparent 
reason  for  the  department  to  take  any  affirmative  action  with  respect 
thereto,  and  that  at  present  it  is  deemed  neither  necessary  nor  de- 
sirable to  do  so. 

(62-224,  J.  A.  G.,  July  12,  1913.) 

Plans  were  submitted  for  dredging  and  for  the  construction  of  a 
wharf  which  was  to  be  an  extension  of  a  stone  pier  built  under  a 
license  from  the  state  authorities  in  the  navigable  waters  of  the  state 
of  Massachusetts,  but  without  the  federal  permit  required  bv  section 
3  of  the  act  of  July  13,  1892  (27  Stat.,  110).  The  directors  of  the 
port  of  Boston,  Mass.,  upon  application  and  after  published  notice 
and  hearing,  licensed  a  company  to  build  the  pier  and  do  the  dredg- 
ing, plans  for  which  were  submitted  for  approval.  The  company, 
Avithout  apparent  knowledge  of  the  requirement  of  the  federal  stat- 
ute, had  proceeded  to  the  construction  of  about  380  feet  of  the  500- 
foot  extension.  The  work  was  suspended  pending  approval  of  the 
plans  submitted. 

Ileld^  That  neither  the  original  pier  nor  the  Avork  recently  done 
could  be  recognized  as  a  lawful  structure,  and  that  this  character 
of  the  construction  could  be  cured  only  by  an  act  of  Congress.  It 
was  therefore  reconmiended  as  in  the  last  preceding  case. 

(02-352,  J.  A.  G.,  July  14,  1913.) 


PRIVATE  PROPERTY:  Of  deceased  soldiers;  disposition  of,  where  the 
same  is  valueless. 
A  private  soldier  died  in  the  service  leaving  a  small  nuiount  of 
clothing  and  toilet  articles,  and  a  council  of  administration  Avns 
appointed  to  dispose  of  his  pei^onal  effects.  These  Avere  put  up  at 
auction  twice  and  no  bids  were  receiA^ed.  A  relative  was  not! Hod 
that  she  could  have  the  effects  of  the  soldier,  but  a  letter  sent  to  her 
address  Av as  returned  undelivered,  and  neitlier  the  AVar  Dopaituicut 
nor  the  Auditor  for  the  War  Department  had  any  furtliei-  data 
as  to  the  name  or  address  of  any  relative  or  legal  representative  of 
said  deceased  soldier. 


254        DIGEST  OF  OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

Ileld^  tiiat  the  effects  having  no  salable  vaUie  and  remaining  un- 
claimed by  any  legal  representative  after  due  notice  given  might  be 
used  by  the  military  authorities  for  deserters  and  general  pris- 
oners. 

(6-155,  J.  A.  G.,  July  9,  1913.) 


PUBLIC    PROPERTY:  Sale    of    burial    caskets    to    retired    officers    and    to 
enlisted  men  of  the  Army. 

Authority  was  requested  at  an  Army  general  hospital  for  the  sale 
to  retired  officers  living  in  the  vicinity  and  to  enlisted  men  of  the 
Army  serving  thereat  of  caskets  or  coffins  for  the  burial  of  relatives 
who  might  die  while  such  officers  were  in  the  vicinity  of  said  post 
or  such  enlisted  men  serving  thereat. 

Held,  that  there  was  no  legislative  authority  for  the  purchase  of 
burial  caskets  or  coffins  for  sale  to  retired  officers  of  the  Army,  or 
to  enlisted  men,  and  that  without  such  authority  the  sale  of  said 
articles  could  not  properly  be  made  to  such  officers  and  enlisted  men. 
W.  D.  Bui.  No.  13,  1913,  p.  12. 

(80-132,  J.  A.  G.,  July  21,  1913.) 


PUBLIC  PROPERTY:   Use  of,  in  commercial  business. 

An  automobile  road  was  about  to  be  completed  in  the  Philippine 
Islands  between  certain  points,  and  authority  was  requested  to  use 
Government  transportation  vehicles  over  the  same  in  the  commercial 
service  of  carrying  passengers  and  freight,  and  charging  therefor, 
covering  the  receipts  into  the  Treasury  of  the  United  States.  No 
commercial  transportation  line  was  regularly  established  between 
said  points. 

Tleld^  that  the  use  of  Government  property  for  the  purpose  indi- 
cated would  be  a  2)ro  tanto  disposition  of  the  same  and  a  diversion 
from  the  purposes  of  the  appropriation  from  which  such  property 
had  been  purchased;  and  that  such  use  of  Government  property 
would  be  unauthorized  and  illegal.  (Dig.  Op.,  J.  A.  G.,  1912,  p.  904, 
A3;  W.  D.  Bui.  No.  20,  1912,  p.  15.) 

(80-137,  J.  A.  G.,  July  18,  1913.) 


PURCHASE  OF  SUPPLIES:   For  Walter  Reed   General  Hospital;  contract 
with  the  Quartermaster  Corps  and  the  General  Supply  Committee. 

By  contract  with  the  Quartermaster  Corps  an  ice  company  under- 
took to  supply  the  Walter  Keed  General  Hospital  in  Washington, 
D.  C.,  with  ice  for  the  period  from  January  1  to  June  30,  1913,  at 
the  rate  of  33  cents  per  hundred  pounds.  The  price  named  in  the 
contract  of  the  same  company  under  the  award  of  the  General  Sup- 
ply Committer  made  pursuant  to  section  4,  act  of  June  17,  1910  (36 
Stat.,  531),  for  supplying  the  executive  departments  and  other  Gov- 
ernment establishments  in  Washington  with  ice,  was  28  cents  per 
hundred  pounds. 

lleld^  that  the  Walter  Keed  General  Hospital  was  a  local  branch 
or  adjunct  of  the  Army  located  in  Washington  as  a  matter  of  con- 


DIGEST  OF  OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       255 

venience,  and  not  a  Government  establishment  in  Washington  within 
the  [)urview  of  said  statute,  and  that  the  contract  with  the  Quarter- 
master Corps  for  supplying  ice  to  said  hospital  was  binding,  and 
vouchers  for  ice  delivered  thereunder  should  be  prepared  at  the  price 
named  in  said  contract.  (Comp.  Dec,  June  20,  1913.) 
(14-120.1,  J.  A.  G.,  July  22,  1913.) 


QUARTEKS:   Certificate  as  to  occupancy. 

On  the  question  raised  as  to  the  proper  certificate  as  to  occupancy 
of  quarters,  reference  being  made  to  the  decision  of  the  Coniptrollei- 
of  the  Treasury  of  May  26,  1913  (W.  D.  Bui.  No.  23,  p.  16,  c.  s.), 
where  an  apartment  was  occupied  by  three  officers,  the  apartment 
containing  three  living  rooms,  three  bedrooms,  one  bathroom,  one 
long  hallway,  one  dining  room,  one  kitchen,  one  maid's  room,  one 
pantry,  and  one  storeroom. 

Held^  that,  assuming  that  each  officer  occupied  exclusively  one 
living  room  and  one  bedroom  and  that  the  other  rooms  were  occu- 
pied in  common  for  their  joint  use,  where  officers  furnish  their  own 
quarters  and  bear  their  share  for  the  rental  of  rooms  occupied  in 
common  by  them,  the  occupancy  should  be  divided  among  the  sev- 
eral officers,  and  that  if  the  officer  in  question  has  occupied  two  rooms 
exclusively,  and  has  used  three  other  rooms  of  sufficient  size  to  count 
as  quarters  in  common  with  two  other  officers,  he  would  be  justified 
in  certifying  that  he  had  occupied  his  full  allowance  of  three  rooms 
as  quarters;  but,  in  view  of  the  fact  that  the  auditor  had  indicated 
that  only  such  rooms  as  are  occupied  by  an  officer  exclusively  shall  be 
included  in  the  certificate,  an  explanation  or  statement  should  accom- 
pany the  certificate  showing  the  exact  condition  of  the  occupancy  in 
common  with  the  other  officers. 

(72-313,  J.  A.  G.,  July  30,  1913.) 

^OTE. — This  case,  where  certain  officers  leased  an  entire  apart- 
ment, jointly  occupying  certain  rooms,  should  be  distinguished  from 
the  cases  covered  by  the  decisions  of  the  assistant  comptroller  dated 
July  30,  1913,  post,'  where  the  rooms  referred  to  as  occupied  in  com- 
mon with  othei-s  were  the  public  rooms  of  a  club  or  hotel,  so  that 
the  same  could  not  be  considered  as  the  quarters  of  the  officers. 


RETIREMENT:  Advanced  grade;  allowances. 

An  officer  of  the  United  States  Army  with  Civil  War  service  was 
retired  from  active  duty  as  a  colonel,  June  7,  1912,  after  moie  than 
46  years'  service.  On  June  12,  1912,  the  Senate  confirmed  his  nomi- 
nation for  advancement  in  grade,  and,  on  June  21  following,  he  was 
by  the  President  placed  upon  the  retired  list  with  the  rank  of  briga- 
dier general  to  date  from  June  7,  the  date  of  his  retirement.  He 
had  personal  effects  to  the  amount  allowed  by  Army  Regulations  for 
a  colonel  transported  to  his  home  at  public  expense  when  he  was 
retired,  and  he  requested  a  decision  as  to  whether  or  not  he  was 
entitled  to  transportation  of  baggage  to  the  amount  allowed  a  bnga- 


256   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

dier  general.  The  act  of  April  23,  1904  (33  Stat.,  264),  provided  in 
part  that — 

"Any  officer  of  the  Army  below  the  grade  of  brigadier  general  who 
served  with  credit  as  an  officer  or  as  an  enlisted  man  in  the  Regular 
or  Volunteer  forces  during  the  Civil  War  prior  to  April  ninth, 
eighteen  hundred  and  sixty-five,  otherwise  than  as  a  cadet,  and 
whose  name  is  borne  on  the  official  register  of  the  Army,  and  who 
has  heretofore  been,  or  may  hereafter  be,  retired  on  account  of 
wounds  or  disability  incident  to  the  service,  or  on  account  of  age 
or  after  forty  years'  service,  may,  in  the  discretion  of  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate,  be  placed  on  the 
retired  list  of  the  Army  with  the  rank  and  retired  pay  of  one  grade 
above  that  actually  held  by  him  at  the  time, of  retirement." 

Held^  that  said  act  conferred  increased  rank  and  pay  only,  but 
conferred  no  other  right,  and  that  the  officer  was  not  entitled  to  the 
additional  allowance  of  a  brigadier  general  in  the  transportation  of 
his  personal  effects  to  his  home. 

(88-572,  J.  A.  G.,  July  10,  1913.) 


TAXATION:   Instrumentalities  of  the   Government;  tax  on  deed  and  fees 
for  recording  same  and  for  recording  transfer  of  property. 

An  account  was  submitted  for  certain  fees  and  taxes  in  connection 
with  the  transfer  to  the  United  States  of  a  tract  of  land  situated  in 
Alexandria  County.  Va..  said  ac<}ount  consisting  of  a  fee  for  record- 
ing the  deed  conveying  the  property  to  the  United  States,  the  State 
tax  on  said  deed,  and  the  fee  of  the  commissioner  of  revenue  for 
recording  the  transfer  of  the  property  on  the  property  or  assessment 
book  of  his  district. 

Held,  that  the  recording  of  the  deed  was  a  governmental  act  for 
the  protection  of  the  title  to  the  United  States,  and  that  the  pay- 
ment of  the  cost  of  the  same  could  properly  be  made  from  the  ap- 
propriation under  which  the  land  was  acquired.  Held  further^  that 
the  State  tax  on  the  deed  and  the  fee  for  recording  the  transfer  of 
the  property  on  the  property  or  assessment  book  of  the  district  were 
not  expenses  of  the  United  States  incurred  for  the  protection  of 
its  interests,  but  were  State  taxes  levied  for  the  purpose  of  revenue 
upon  an  instrumentality  of  the  State  not  subject  to  taxation  under 
State  laws,  and  that  said  items  could  not  legally  be  paid  from  any 
funds  under  the  control  of  the  War  Department. 

(90-121,  J.  A.  G.,  July  22,  1913.) 


TBANSPORTATION:   Army  supplies  in  American  vessels. 

By  act  of  April  28,  1904  (33  Stat..  518),  it  is  provided  that  the 
transportation  of  supplies  for  the  Army  and  Navy  by  sea  shall  be  in 
vessels  of  the  United  States,  or  belonging  to  the  United  States,  and 
no  others,  "  unless  the  President  shall  find  the  rates  of  freight  charges 
by  said  vessels  are  excessive  and  unreasonable,  in  which  case  con- 
tracts shall  be  made  under  the  law  as  it  now  exists."  etc.:  and  by 
section  3  of  the  act  of  April  29.  1908  (35  Stat.,  70),  it  is  provided 
that  the  "  provisions  of  law  restricting  to  vessels  of  the  United 


DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       257 

States  the  transpoitation  of  passengers  and  merchandise  directly  or 
indirectly  from  one  port  of  the  United  States  to  another  port  of  the 
United  States  shall  not  be  applicable  to  foreign  vessels  engaging  in 
trade  between  the  Philippine  Islands  and  the  United  States."' 

On  the  question  raisetl  as  to  whether  the  later  act  modifies  the 
earlier  act  so  as  to  permit  the  shipment  of  engineer  material  re- 
quired for  construction  purposes  to  Manila  in  foreign  vessels, 

Ileld^  that  the  earlier  act  is  a  special  statute  regulating  the  ship- 
ment of  military  or  naval  supplies,  while  the  later  act  is  an  amend- 
ment of  the  general  law  regulating  the  coast  trade;  that  under  the 
well-established  rule  of  construction  that  repeals  by  implication 
are  not  favored,  and  that  a  later  statute,  general  in  its  scope,  will 
not  be  construed  as  an  implied  repeal  of  an  earlier  special  statute 
unless  there  be  a  clear  intention  to  do  so,  the  provisions  of  the 
earlier  act  are  in  no  way  modified  by  the  later  act. 

(94-128,  J.  A.  G.,  July  30,  1913.) 


TRANSPORTATION:   Baggage    allowance    on    change    of    station;    cost    of 
packing  for  shipment. 

The  Auditor  for  the  War  Department  suspended  for  further  in- 
formation a  voucher  in  a  disbursing  officer's  account  covering  the 
payment  of  the  regulation  amount  for  packing  and  crating  for  ship- 
ment for  a  lieutenant  colonel  of  his  full  authorized  allowance  of 
personal  baggage  to  be  transported  at  public  expense  on  change  of 
station.    Paragraph  1151,  Army  Regulations,  1910,  provides  that — 

"  The  baggage  to  be  transported  at  public  expense,  including  mess 
chests  and  personal  baggage,  upon  change  of  station  will  not  exceed, 
when  packed  and  crated  the  following  gross  weights:     =i=     *     * 

"  Field  officer,  permanent  change  of  station,  7,200  pounds. 

*  *  :1:  *  *  *  * 

"  The  maximum  money  allowance  for  packing  and  crating  for  each 
grade,  exclusive  of  professional  books  and  papers,  will  be  as  follows, 
and  will  not  be  exceeded.  When  less  than  the  maximum  allowance 
for  each  grade  is  transported,  a  proportionate  decrease  in  the  cost  of 
packing  and  crating  will  be  made.     *     *     * 

"  Field  officer,  permanent  change  of  station,  $43.20.     *     *     *." 

The  voucher  suspended  was  for  the  maximum  money  allowance 
for  packing  and  crating  the  maximum  allowance  of  baggage  for  an 
officer  in  the  grade  mentioned,  excluding  professional  books  and 
papers,  for  which  no  charge  was  made.  The  auditor  required  evidence 
of  the  actual  amount  of  baggage  packed  and  ci'ated,  and  the  original 
bill  for  labor  and  materials  furnished  for  that  purpose. 

Held,  that  the  regulation  governing  the  allowance  of  jjersonal  bag- 
gage to  be  transported  at  public  expense  on  change  of  station  and  the 
amount  to  be  allowed  for  packing  and  crating  the  same  for  shipment 
Avas  a  limitation  which  the  officer  might  not  exceed  either  in  the 
amount  of  baggage  sliipped  or  in  the  cost  of  packing  and  crating  the 
same,  and  that  only  the  actual  amount  of  baggage  shi]i]ied  and  not 
exceeding  the  allow^ance  might  be  transported  at  public  ex]iense.  and 
only  the  actual  amount  expended  in  packing  and  ciating  the  same  for 

93668°— 17 17 


258       DIGEST    OF   OPINIONS   OF    THE    JUIX5E   ADVOCATE   GENERAL. 

shipment,  not  exceeding  the  amount  prescribed,  might  be  paid  for 
such  purpose.  It  was  therefore  recommended  that  the  officer  should 
furnish  a  voucher  showing  the  actual  amount  of  baggage  packed  and 
crated,  and  that  the  same  be  supported  by  subvouchers  covering  the 
services  performed  and  the  materials  furnished  in  packing  and  crat- 
ing the  same  for  shipment. 

(94-412,  J.  A.  G.,  July  17,  1913.) 


TRANSPORTATION:   Of  Mexican  prisoners;  appropriation  chargeable. 

An  account  was  submitted  for  the  transportation  of  1  officer  and  43 
enlisted  men,  and  237  Mexican  prisoners  from  El  Paso  to  Fort  Bliss 
in  the  State  of  Texas.  These  prisoners  had  fled  to  the  United  States 
from  a  pursuing  enemy  in  Mexico,  where  disturbed  political  condi- 
tions existed,  and  the  United  States  authorities  had  interned  them. 
The  United  States  Government  had  not  recognized  a  state  of  bel- 
ligerency in  that  country,  although  it  had  recognized  that  conditions 
of  violence  existed  there.  Held^  that  under  the  circumstances,  the  ex- 
penses attendant  upon  caring  for  these  prisoners  must  be  met  by  the 
IJnited  States  until  such  time  as  Mexico  should  make  them  good; 
held^  further^  that  the  expense  of  transporting  said  prisoners  was 
properly  chargeable  to  the  appropriation  for  contingencies  of  the 
Army,  and  that  an  account  should  be  itemized  and  reported  to  the 
State  Department,  in  order  that  reimbursement  might  he  requested 
of  the  Mexican  Government  at  the  proper  time. 

(94-342,  J.  A.  G.,  July  9,  1913.) 


TRANSPORTATION:   Sleeping-car    accommodation    for    a    private    soldier 
where  first-class  rail  transportation  was  provided. 

A  depot  quartermaster  provided  first-class  transportation  to  a  pri- 
vate soldier,  not  a  noncommissioned  officer,  traveling  alone  under 
orders,  no  second-class  transportation  being  available  for  the  journey, 
and  in  connection  therewith  provided  one  upper  berth  in  a  tourist 
sleeping  car  for  a  part  of  the  journey.  Paragraph  1143,  Army  Regu- 
lations, 1910,  provides  that — 

"  *  *  *  when  the  number  of  troops  is  too  small  to  justify  the 
hiring  of  tourist  sleepers,  second-class  transportation  with  tourist 
sleeping-car  accommodations  on  the  same  basis  may  be  furnished. 
Wlien  the  number  is  less  than  three,  each  man  will  be  furnished  with 
a  berth." 

On  May  14,  1912,  the  Quartermaster  General  of  the  Army  issued 
instruction  which  effectually  prohibited  the  furnishing  of  sleeping- 
car  accommodations,  either  standard  or  tourist,  to  enlisted  men  not 
noncommissioned  officers,  where  first-class  transportation  is  provided. 

Held^  that  these  instructions  of  the  Quartermaster  General  were  not 
in  conflict  with  the  regulation,  which  did  not  forbid  the  furnishing  of 
sleeping-car  accommodations  under  such  conditions,  and  that  the 
depot  quartermaster  having  provided  such  sleeping-car  accommoda- 
tions contrary  to  said  instructions,  should  refund  the  amount  charged 
for  the  same  in  order  that  the  account  might  be  settled. 

(94-240,  J.  A.  G.,  July  15,  1913.) 


DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL.        259 

TRAVELING  EXPENSES:   Army  ofl&cers  on  civil  business  as  members  of 
a  commission;  appropriation  chargeable. 

Joint  resolution  No.  40  of  August  9,  1912  (37  Stat,  G41),  directed 
the  Secretary  of  War  to  cause  an  investigation  to  be  made  of  tlie 
claims  of  American  citizens  and  others  domiciled  in  the  United 
States  for  certain  injuries  received  within  the  boundaries  of  the 
United  States  from  the  operations  of  Federal  or  insurgent  troops  of 
Mexico  in  the  course  of  the  insurrection  in  that  country  during  the 
year  1911.  For  the  purpose  of  such  investigation  the  resolution 
authorized  the  Secretary  to  appoint  "  a  commission  of  three  Army 
officers,"  which  commission  was  given  authority  to  subpoena  wit- 
nesses, administer  oaths,  etc.,  and  was  required  to  report  to  Con- 
gress through  the  Secretary  of  War  its  findings  of  fact  upon  each 
claim,  together  with  its  conclusions  as  to  the  justice  and  e(iuity 
thereof,  and  as  to  the  proper  amounts  of  compensation  or  indemnity 
to  be  paid.  Subsequently  the  sum  of  $5,000  was  appropriated  by 
Congress  "  to  carry  out "  the  provisions  of  said  resolution. 

Ileld^  that  for  travel  performed  under  orders  by  members  of  said 
commission  in  connection  with  its  business,  only  mileage  and  not 
actual  traveling  expenses  could  be  paid  to  said  officers,  and  that 
the  accounts  should  be  submitted  to  the  Auditor  for  the  War  De- 
partment upon  that  basis.  Held  further^  that  the  mileage  should  be 
paid  from  the  special  appropriation  made  for  the  payment  of  the 
expenses  of  the  commission. 

(91-210,  J.  A.  G.,  July  23,  1913.) 


VOLUNTARY  SERVICES:  Payment  for  repairs  of  railroad  siding  belong- 
ing to  the  Government. 

A  railroad  side  track  belonging  to  the  Government  and  located 
upon  a  Government  military  reservation  was  in  bad  condition,  and 
the  railroad  company  with  whose  lines  it  connected  repaired  the 
same  without  any  request  by,  but  without  objection  from,  the  mili- 
tary authorities. 

HeM.,  that  as  the  work  was  voluntarily  rendered,  and  as  there  was 
no  contract  either  express  or  implied  upon  the  part  of  the  (Jovcrn- 
ment  to  pay  for  the  said  repairs,  there  was  no  authority  for  making 
payment  for  the  services  rendered. 

(76-030,  J.  A.  G.,  July  15,  1913.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General. ) 

APPROPRIATIONS:  Heating  and  plumbing  fixtures;  Public  buildings. 

By  act  of  August  24,  1912  (37  Stat,  582),  the  sum  of  $10,000  from 
the  appropriation  for  "  Barracks  and  quarters  "  was  authorized  to  be 
expended  for  the  construction  of  a  building  for  instruction  purposes 
for  the  post  of  Fort  Leavenworth,  Kans. ;  and  by  act  of  Marcli  4,  1!»13 
(37  Stat.,  865),  an  additional  amount  of  $5,000  was  appropriated  for 


260       DIGEST   OF   OPINIONS   OF    THE   JUEKiE   ADVOCATE   GENERAL. 

the  same  purpose.  On  the  question  raised  as  to  whether  the  cost  of 
instalhition  of  phimbing  and  heating  apparatus  and  electric  wiring  in 
such  buikling  is  a  proper  charge  against  the  appropriation  for  the 
construction  of  the  building  or  whether  the  plumbing  should  be 
charged  to  the  appropriation  ''  Water  and  sewers  at  military  posts  " 
and  the  heating  apparatus  and  electric  wiring  fixtures  to  the  appro- 
priation "  Regular  supplies,"  as  is  the  case  with  respect  to  other  build- 
ings provided  for  under  the  appropriation  "  Barracks  and  quarters," 
the  Comptroller  referred  to  the  item  under  the  heading  "  Regidar 
supplies"  (act  of  March  2,  1913,  37  Stat.,  712),  providing  "for  fur- 
nishing heat  and  light  for  the  authorized  allowance  of  quarters  for 
officers  and  enlisted  men  *  *  *  and  for  recruits,  guards,  hos- 
pitals, storehouses,  offices,  *  *  *  "  and  to  the  item  in  same  act 
under  the  heading  "  Water  and  sewers  at  military  posts,"  providing 
"for  the  installation  and  extension  of  plumbing  within  buildings 
where  the  same  is  not  specificaJly  provided  for  in  other  appropria- 
Ho-ns,     *     *     *  "  and  held  as  follows : 

(a)  That  as  a  general  rule  all  those  parts  of  a  building  which  are 
in  their  nature  fixtures  and  which  would  be  included  in  a  transfer  of 
the  ownership  of  the  building  are  regarded  as  a  part  of  the  building 
itself;  and  the  cost  of  such  fixtures,  if  placed  therein  at  the  time  the 
building  is  in  process  of  erection,  is  payable  from  the  appropriation 
for  the  erection  of  the  building  in  the  absence  of  some  other  appro- 
priation making  more  specific  provisions  therefor.  (See  MS.  Comp. 
Dec.  5C1,  dated  Feb.  28,  1899;  18  Comp.  Dec,  612.) 

(5)  That  the  appropriation  for  "Water  and  sewers  at  military 
posts  "  provides  expressly  that  the  cost  of  installation  of  plumbing  in 
buildings  shall  be  paid  therefrom  unless  the  same  is  specifically  pro- 
vided for  in  other  appropriations;  and  that  as  the  appropriation  for 
the  building  does  not  provide  specifically  for  the  installation  of 
plumbing  therein,  the  cost  of  plumbing  in  said  building  should  be 
charged  to  the  appropriation  for  "  Water  and  sewers." 

(c)  As  to  the  installation  of  the  heating  apparatus  and  electric  wir- 
ing and  fixtures,  there  being  no  appropriation  making  more  specific 
provision  therefor  than  the  appropriation  for  the  construction  of  the 
building,  the  cost  of  their  installation  should  be  charged  to  the  appro- 
priation for  the  construction  of  the  building. 

(Asst.  Comp.  W.  W.  Warwick,  July  29,  1913.) 


CONTRACTS:   Delays  in  performance. 

A  contract  with  the  Government  provided  for  the  improvement  of 
navigation  by  dredging  and  rock  removal  within  an  area  in  the  Har- 
lem River,  New  York.  The  specifications  attached  to  and  forming  a 
part  of  the  contract  contained  the  statement  that  approximately  1,650 
cubic  yards  of  ledge  rock  were  required  to  be  removed.  In  the  prose- 
cution of  the  work  it  was  necessary  to  remove  a  total  of  2,914.7  cubic 
yards  of  such  material  in  order  to  excavate  to  the  required  depth,  the 
"difference  causing  a  delay  of  four  and  two-thirds  months  beyond  the 
time  for  the  completion  of  the  w^ork.  The  discrepancy  between  the 
amount  of  ledge  rock  named  in  the  specifications  and  the  amount 


DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       261 

necessary  to  remove  was  caused  by  the  fact  that  the  rock  surface  was 
very  irreguhir  and  overhiid  with  haid  material  so  that  it  was  impos- 
sible to  determine  its  surface  by  the  ordinary  methods  of  rod  boring. 
The  quantities  given  in  the  specifications  were  only  approximate  and 
were  expressly  stated  to  be  but  an  estimate,  and  the  contract  and 
specifications  contained  a  provision  that  bidders  were  expected  to  ex- 
amine the  work  and  to  decide  for  themselves  as  to  its  character  and 
make  their  bids  accordingly,  as  the  United  States  did  not  guarantee 
the  accuracy  of  the  description.  Another  paragraph  of  the  specifi- 
cations provided  that — 

"  No  allowance  Avill  be  made  for  the  failure  of  a  bidder  or  of  a  con- 
tractoi-  to  estimate  correctly  the  difficulties  attending  the  execution  of 
the  work." 

It  was  further  provided  that  no  charge  for  inspection  or  superin- 
tendence would  be  made,  after  the  expiration  of  the  contract  for  time 
lost — 

"  On  account  of  the  unusual  freshets,  ice,  rainfall^  or  other  abnor- 
mal forces  or  violence  of  the  elements  *  *  *  or  other  unforsee- 
able  cause  of  delay  arising  through  no  fault  of  the  contractor  and 
which  actually  prevented  such  contractor  from  commencing  or 
completing  the  Avork  *  *  *  within  the  period  required  by  the 
contract." 

Held^  that  a  statement  of  the  approximate  quantities  of  material 
set  out  in  the  specifications  was  distinctly  not  a  warranty  but  at  most 
a  mere  estimate  {Grief en  v.  United  States^  43  Ct.  Cls.,  107),  and  the 
fact  that  there  was  more  ledge  rock  to  remove  than  either  the  con- 
tractor or  the  Government  had  expected  was  not  an  unforseeable 
cause  of  delay  within  the  meaning  of  the  contract.  Held^  therefore^ 
that  the  contractor  should  be  charged  with  all  the  cost  of  inspection, 
etc.,  for  delay  beyond  time  for  completion  occasioned  by  the  necessity 
for  the  removal  of  the  quantity  of  ledge  rock  above  the  amount  men- 
tioned in  the  specifications. 

(Asst.  Comp.  W.  W.  Warwick,  June  30,  1913.) 


CONTRACTS:  Where  Government  assists  contractor  who  is  not  in  default. 
A  contract  for  levee  work  provided  that  the  price  per  yard  should 
include  all  costs  for  clearing  the  foundation.  After  clearing  the 
foundation  the  work  was  delayed  by  excessive  rains;  and  in  order 
to  expedite  the  work  in  view  of  approaching  floods  and  without 
awaiting  any  default  or  delinquency  on  the  part  of  the  contractor, 
the  contracting  officer,  with  the  assent  of  the  contractor,  placed  a 
quantity  of  materials  on  the  site  cleared  by  the  contractor  at  a  cost 
of  $357.27  less  than  the  amount  which  the  contractor  would  have 
received  for  the  same  quantity  of  materials  under  the  terms  of  the 
contract.  Held,  that  the  contract,  as  modified  by  the  contractoi-\s 
agreement  that  the  Government  should  aid  in  the  woik.  should  be 
interpreted  so  as  to  give  him  the  contract  rate  per  yard  for  all 
materials  placed  in  the  work,  deducting  therefrom  the  cost  to  the 
Government  for  the  work  done  by  it. 

(Asst.  Comp.  W.  W.  Warwick,  July  7,  1913.) 


262        DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

MILITIA:  Pay  of  retired  officers  and  enlisted  men  of  the  Army  serving  in 
militia  organizations. 

On  questions  submitted  as  to  the  pay  and  allowances  of  retired 
officers  and  enlisted  men  of  the  Army  serving  in  the  Organized 
Militia  from  appropriations  by  Congress  for  the  militia,  held  that 
the  appropriations  for  the  pay  and  allowances  of  officers  and  men 
of  the  Organized  Militia  are  not  available  for  the  payment  of  retired 
officers  and  enlisted  men  of  the  Regular  Army  serving  in  said 
organization;  that  the  purpose  of  the  appropriation  for  the  militia 
is  to  have  a  force  of  organized  militia  "  constantly  prepared  to 
take  the  field  at  any  time  at  the  call  of  the  President,  and  all  drills, 
camps,  and  maneuvers  are  for  the  purpose  of  keeping  them  in  a 
condition  ready  to  meet  the  requirements  " ;  that  the  service  of  retired 
officers  of  the  Army  may  be  availed  of  only  under  certain  conditions, 
?nd  retired  enlisted  men  can  not  be  called  upon  for  service  of  any 
kind;  and  that  it  can  not  be  said  that  the  appropriations  made  by 
Congress  for  the  purpose  of  the  "maintenance  of  the  Organized 
Militia  ready  for  war,"  were  intended  to  cover  the  pay  and  allow- 
ances of  retired  officers  and  enlisted  men  of  the  Army  who,  because 
of  their  age  or  physical  condition  or  the  provisions  of  existing  law, 
are  not  available  for  active  service.  Tleld^  therefore,  that  the  "  pay 
and  allowances  of  retired  officers  and  enlisted  men  of  the  Regular 
Army  who  are  members  of  the  Organized  Militia  for  participation 
in  camps  of  instruction,  etc.,  should  he  only  the  pay  received  on  the 
retired  list  of  the  Regular  Army  and  from  the  appropriations  made 
therefor." 

(Asst.  Comp.  W.  W.  Warwick,  July  30,  1913.) 


PURCHASE  OF  SUPPLIES:   General  Supply  Committee;  office  of  the  Chief 
of  Staff  of  the  Army. 

Payment  had  been  made  by  a  disbursing  officer  for  office  supplies 
bought  in  the  open  market  for  use  in  the  office  of  the  Chief  of  Staff, 
United  States  Army,  and  the  Auditor  for  the  War  Department  had 
disallowed  credit  for  the  payment  upon  the  ground  that  said  supplies 
were  provided  for  in  the  general  schedule  of  supplies  of  the  General 
Supply  Committee,  and  should  have  been  purchased  thereunder  in 
accordance  with  section  4  of  the  act  of  June  17,  1910  (36  Stat.,  531). 

Held,  that  the  office  of  Chief  of  Staff  was  not  an  office  or  bureau 
of  the  executive  department  in  Washington  known  as  the  War  De- 
partment, but  was  a  part  of  the  Army,  and  that  said  act  has  no 
application  to  said  office.  The  credit  for  the  items  disallowed  was 
therefore  allowed. 

(Asst.  Comp.  W.  W.  Warwick,  July  5,  1913.) 


PURCHASE  OF  SUPPLIES:   For  the  postal  service  outside  of  Washington. 

On  application  by  the  Postmaster  General  for  a  decision  as  to 
whether  or  not  supplies  might  be  purchased  for  the  postal  service 
independently  of  the  act  of  June  17,  1910  (36  Stat.,  531),  for  the  use 
of  said  service  in  Washington  or  for  delivery  and  storage  therein  and 
subsequent  reshipment  to  post  offices  and  the  postal  service  outside. 


DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       263 

Held,  that  the  act  of  June  17,  1910,  was  Limited  in  its  scope  and 
application  to  "the  executive  departments  and  otlier  (lovernment 
establishments  in  Washington,"  and,  therefore,  had  no  application 
to  the  postal  service,  which  was  not  an  executive  department  or 
other  Government  establishment  in  Washington,  but  was  a  lield 
service,  and  that  the  Postmaster  General  could  lawfully  contract 
for  supplies  for  said  service  of  the  same  or  similar  kind  to  the 
standardized  supplies  included  in  the  schedule  of  the  (Jeneral  Supply 
('ommittee,  for  delivery  in  Washington  either  for  consumi)tion 
therein  by  the  postal  service  or  for  storage  and  subsequent  reship- 
ment  to  the  post  offices  and  other  j^ostal  service  agencies  outside, 
independently  of  the  provisions  of  said  act. 

(Comp.  George  E.  Downey,  July  7,  1913.) 


QUARTERS:  Heat  and  light. 

Where  certain  officers  presented  vouchers  for  the  commuted  value 
of  the  maxinnim  allowance  for  heat  and  light  for  the  authorized 
number  of  rooms,  accompanied  by  certificates  showing  that  they 
actually  occupied  less  than  the  authorized  number,  Jield.^  that  the  law 
authorizes  payment  for  only  heat  and  light  actually  necessary  for 
the  quarters  occupied  by  an  officer  (act  of  Mar.  2, 1907,  34  Stat.,  11()7)  ; 
that  the  regulations  of  the  Secretary  of  War  have  prescribed  the 
maximum  allowance  necessaiy  to  heat  and  light  quarters  consisting 
of  one  room,  two  rooms,  three  rooms,  etc.,  respectively;  that  it  is 
not  necessary  to  heat  and  light  quarters  not  occupied;  and  that  if  the 
officer  "  actually  and  exclusively  occupied  as  quarters  two  rooms  in 
addition  to  bath  and  to  rooms  used  in  common  with  others,  such  as 
parlor,  dining  room,  kitchen,  lobby,  etc.,  and  those  facts  are  estab- 
lished by  compentent  evidence,  he  is  entitled  to  the  allowance  pre- 
scribed in  the  regulations  for  two  rooms,  and  no  more."  (19  Comp. 
Dec,  675.) 

(Asst.  Comp.  W.  W.  Warwick,  July  30,  1913.) 

Also  held,  in  the  case  of  an  officer  whose  rank  entitled  him  to  seven 
rooms  while  his  certificate  showed  that  he  actually  occupied  two 
rooms  only,  as  follows : 

"  The  law  authorize,?  only  the  heat  and  light  actually  necessary 
for  the  officer's  quarters.  No  heat  or  light  is  jiecessari/  for  quarters 
not  occupied.  The  regulations  prescribe  the  quantity  of  fuel  and 
illuminating  supplies  necessary  to  heat  and  light  quarters  consisting 
of  one  room,  two  rooms,  three  rooms,  etc.,  respectively.  Hence,  when 
an  officer  occupies  two  rooms  as  quarters  and  it  is  practicable  to 
furnish  heat  and  light  therefor  in  kind,  he  is  entitled  to  the  heat  and 
light  actually  used  not  to  exceed  the  allowance  that  the  Secretary  of 
War  has  prescribed  as  the  maximum  quantity  necessary  for  .such 
quarters.  And  if  it  is  impracticable  to  furnish  heat  and  light  in 
kind  for  two  rooms  occupied  as  quarters,  it  will  be  assumed,  in  (he 
absence  of  better  evidence,  that  the  officer  required  the  full  quantity 
of  heat  and  light  prescribed  in  the  regulations  as  necessjiry  for 
quarters  consisting  of  two  rooms,  and  the  value  of  said  allowance  will 
be  paid  accordingly." 

(Asst.  Comp.  W".  W.  Warwick,  July  30,  1913.) 


264       DIGEST  OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEEAL. 

TRANSPORTATION:   Baggage  of  officers  traveling  on  a  mileage  basis. 

On  appeal  from  a  decision  of  the  Auditor  for  the  War  Depart- 
ment disallowing,  inter  alia^  a  claim  of  an  officer  serving  as  military 
attache  abroad  for  reimbursement  for  the  amount  paid  by  him  for 
the  transportation  of  his  baggage,  while  traveling  on  official  business 
on  a  mileage  basis,  held^  that  mileage  is  an  allowance  in  the  nature 
of  a  reimbursement  for  the  expenses  of  travel  incurred  by  an  officer 
traveling  under  competent  orders  on  public  business;  that  the  mileage 
law  (Act  of  June  12,  1906,  34  Stat.,  246)  expressly  provides  "That 
hereafter  officers  *  *  *  when  traveling  under  competent  orders 
without  troops  *  *  *  shall  he  paid  7  cents  per  mile  and  no  Tnore 
*  *  *  ■';  that  the  mileage  so  authorized  is  intended  to  and  does  cover 
every  ordinary  and  reasonable  expense  of  travel,  including  any 
cost  of  transportation  of  personal  baggage,  such  as  an  officer  usually 
traveling  in  a  mileage  status  usually  carries  with  him ;  that  to  allow 
the  claim  in  question  would  be  to  give  the  officer  more  than  7  cents  a 
mile,  contrary  to  the  provision  of  the  statute;  and  that  the  regula- 
tions authorizing  such  allowance  (pars.  1137  and  1153,  Regulations 
1910)  are  directly  contrary  to  the  statute  and  without  legal  force  or 
effect. 

(Asst.  Comp.  W.  W.  Warwick,  July  29,  1913.) 


TRANSPORTATION:  Hire    Of    automobiles;    use    of    by    the    Secretary    of 
War  and  Army  officers  for  field  inspection. 

Vouchers  were  presented  for  automobile  service  furnished  to  the 
Quartermaster's  Department  in  connection  with  a  field  inspection  at 
Pole  Mountain,  Wyo.,  by  the  Secretary  of  War  and  a  party  of  Army 
officers  accompanying  him,  under  authority  of  a  telegram  from  the 
Quartermaster  General  dated  August  28,  1912.  The  vouchers  had 
been  paid  from  the  appropriation  for  the  transportation  of  the 
Army.  The  Army  appropriation  act  of  August  24,  1912  (37  Stat., 
683),  under  head  of  "  Transportation  of  the  Army  and  its  supplies," 
provides : 

"  For  the  purchase,  hire,  operation,  maintenance  and  repair  of  such 
harness,  wagons,  carts,  drays,  and  other  vehicles  as  are  required  for 
the  transportation  of  troops  and  supplies,  and  for  official,  military, 
and  garrison  purposes." 

Said  provision  first  appeared  in  the  Army  appropriation  act  of 
March  3,  1911  (36  Stat,  1051),  for  the  fiscal  year  1912,  and  in  ad- 
dition said  act  contained  the  following  provision: 

"  That  hereafter  in  the  performance  of  their  official  and  military 
duties  the  officers  of  the  Army  are  authorized,  under  such  regulations 
as  may  be  established  by  the  Secretary  of  War,  to  use  the  means  of 
transportation  herein  provided  for." 

Held.,  that  the  law  provided  for  the  hiring  of  the  vehicles  in  ques- 
tion, and  permitted  their  use  by  Army  officers  for  official  and  military 
purposes,  and  that  the  fact  that  the  Secretary  of  War  also  rode  in 
the  automobiles  did  not  affect  the  legality  of  the  transaction.  Held., 
therefore,  that  the  vouchers  might  be  paid. 

The  question  of  whether  the  Secretary  of  War  could  be  considered 
as  a  part  of  the  Army  while  engaged  on  this  duty  was  not  decided, 
as  a  decision  upon  that  point  was  not  considered  necessary. 

(Asst.  Comp.  W.  W.  Warwick,  July  18,  1913.) 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       265 

TBANSPOIITATION:   Land-grant  deductions;  basis  of  deduction. 

A  railway  company  appealed  from  a  decision  of  the  Auditor  for 
the  War  Department  disallowing  a  certain  amount  of  its  bill  for 
transportation  of  coal  from  Roslyn,  Wash.,  to  Fort  Stevens,  Oreg., 
on  account  of  land-grant  deduction,  claiming  that  the  Auditor  erred 
in  including  certain  land-grant  mileage  twice. 

In  the  division  of  the  through  rate  of  $2.80  per  ton  for  said  ship- 
ment between  said  points,  $'2  per  ton  accrued  between  Roslyn.  AVash., 
and  Willbridge,  Oreg.,  to  the  Northern  Pacific  Railway,  which  was 
subject  to  the  land-grant  deduction  on  the  basis  of  land-grant  mile- 
age between  said  points,  and  that  80  cents  per  t(m  accrued  between 
Willbridge  and  Fort  Stevens,  Oreg.,  to  the  claimant  company,  wliicli 
was  subject  to  land-grant  deduction  on  the  basis  of  land-grant  mile- 
age between  said  points  on  account  of  using  the  land-grant  mileage 
of  the  Northern  Pacific  Railway  Co. 

Held^  that  where  through  transportation  is  authorized  by  a  route 
which  requires  the  double  use  of  the  same  track,  each  use  of  which 
is  a  different  part  of  the  through  service  and  for  which  a  separate 
division  of  the  through  rate  is  authorized,  land-grant  deduction 
should  be  made  on  the  ratio  of  the  land-grant  mileage  to  the  total 
mileage  involved  in  each  separate  division  of  the  through  rate,  thougli 
the  same  mileage  is  used  as  parts  of  different  divisions.  (18  Comp. 
Dec,  309.)     The  Auditor's  disallowance  was  sustained. 

(Comp.  Geo.  E.  Downey,  July  24,  1913.) 


OPINION  OF  THE  ATTORNEY  GENERAL. 

(Digest  prepared  in  tlie  office  of  the  .Tiulge  Advocate  General.) 

PROMOTIONS:   Of  Amiy  officers  by  seniority. 

The  act  of  October  1,  1890  (26  Stat.,  562),  provides: 

"  That  hereafter  promotion  to  every  grade  in  the  Army  below  the 
rank  of  brigadier  general,  throughout  each  arm,  corps,  or  depart- 
ment of  the  service  shall,  subject  to  the  examination  hereinafter  pro- 
vided for,  be  made  according  to  seniority  in  the  next  lower  grade 
of  that  arm,  corps,  or  department:  Provided^  That  in  the  line  of  the 
Army  all  officers  now  above  the  grade  of  second  lieutenant  shall, 
subject  to  such  examination,  be  entitled  to  promotion  in  accordance 
with  existing  law^s  and  regulations." 

Section  3  of  the  same  act  authorizes  the  President  to  prescribe  a 
system  of  examination  of  all  officers  of  the  Army  below  the  rank  of 
major  to  determine  their  fitness  for  promotion,  and  provides  that 
if  any  officer  fails  to  pass  a  satisfactory  examination  and  is  rei^orted 
unfit  for  promotion,  the  officer  next  below  him  in  rank  having  passed 
said  examination  shall  receive  the  promotion. 

The  President  submitted,  for  opinion,  the  questions  of  whethtM- 
the  provisions  of  the  act  of  October  1.  1890,  that  promotions  in  the 
Army  below  the  rank  of  brigadier  general  shall,  subject  to  the  ex- 
amination required  therefor,  be  made  according  to  seniority  in  next 
lower  grade,  made  it  mandatory  upon  the  President  to  appoint  the 
senior  officer  in  the  grade  of  major  to  a  vacancy  in  the  grade  of 
lieutenant  colonel,  if,  in  his  opinion,  the  record  of  the  officer  indicated 


2G6        DIGEST-   OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL. 

that  he  was  disqualified  for  the  promotion,  and  he  could  not  be  elimi- 
nated either  through  the  agency  of  a  retiring  board  or  a  court- 
martial;  and  whether  if  such  statute  be  so  construed  it  would  not 
be  an  unauthorized  encroachment  upon  the  appointing  power  of  the 
President,  and  should  for  that  reason  be  held  to  be  advisory  in 
character. 

Held.,  that  by  section  2,  Article  II,  Constitution  of  the  United 
States,  which  deals  with  the  power  of  the  President  to  make  ap- 
pointments, when  Congress  creates  an  office,  but  does  not  vest  the 
appointment  thereto  in  any  of  the  persons  specified  in  said  section, 
the  Constitution  operates  proprio  vigore  and  immediately  casts  upon 
the  President  by  and  with  the  advice  and  consent  of  the  Senate  the 
duty  of  appointing  thereto;  that  the  power  of  appointment  involves 
the  exercise  of  a  discretion  not  to  be  entirely  controlled  by  Congress ; 
and  that  the  fact  that  Congress  is  ^iven  the  power  by  the  Constitu- 
tion "  to  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces  "  does  not  enable  it  to  control  the  President's  dis- 
cretion in  respect  of  those  appointments  which  the  Constitution  re- 
quires him  to  make.  Held  further,  that  the  act  of  October  1,  1890, 
did  not  make  it  obligatory  upon  the  President  to  promote  the  senior 
officer  in  the  grade  of  major  when  a  vacancy  existed  in  the  grade  of 
lieutenant  colonel,  if,  in  his  opinion,  the  record  of  the  officer  had 
been  such  as  to  indicate  that  he  was  disqualified  for  the  promotion. 

(Atty,  Gen.  J.  C.  McKeynolds,  June  23,  1913.) 


BULLETIN  29. 

Bulletin  1  WAR  DEPARTMENT, 

No. '29.     J  Washington,  ;S('pte7)iber  JO,  191.}. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  montii  of  August,  1913,  including  one  opinion 
for  July,  1913,  not  heretofore  published,  and  of  certain  decisions  of 
the  Comptroller  of  the  Treasury  and  of  opinions  of  the  Attorney 
Greneral  and  of  one  court  decision,  is  published  for  the  information 
of  the  service  in  general. 
[2054671  A.— A.  G.  O.] 

By  order  of  the  Secretary  of  War  : 

LEONARD  WOOD, 
Major  General,  Chief  of  Staff. 
Official  : 

H.  O.  S.  HEISTAND, 

Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ABSENCE  ON  SICK  LEAVE:   Status  of  officer  on  sick  leave  without  any 
regular  station. 

An  officer  of  the  Medical  Reserve  Corps  who  was  ill  with  heart 
trouble  w^as  transferred  from  Benicia  Arsenal,  Cal.,  to  the  Letter- 
man  General  Hospital.  It  became  necessary  to  replace  him  at  the 
arsenal  by  another  medical  officer  and,  owing  to  the  limited  accom- 
modations for  officers  at  that  station,  to  relieve  him  froni  further 
duty  to  make  room  for  the  family  of  his  successor.  No  orders  were 
issued  assigning  him  to  a  new  station.  He  requested  that,  unless  the 
order  relieving  him  from  duty  at  the  arsenal  entitled  him  to  connnu- 
tation  of  quarters,  thereafter  quarters  be  provided  in  San  Francisco 
for  his  family,  which  had  been  occupying  the  (|uarters  assigned  to 
him  at  Benicia  Arsenal;  that  his  household  goods  and  two  jirivate 
mounts  at  Benicia  Arsenal  be  shipped  by  the  (piartermaster  to  the 
Letterman  General  Hospital;  and  that  some  quaitermaster  in  the 
neighborhood  be  authorized  to  issue  forage  for  said  mounts  after 
their  arrival. 

Held,  that  this  officer's  status  was  that  of  an  officer  who  had  been 
relieved  from  duty  at  his  station  without  an  assignment  -to  a  new 
station,  and  was  analogous  to  that  of  an  officer  on  sick  leave  with- 
out any  regular  station,  and  that  hence  he  was  not  entitled  to  com- 
mutation of  quartei-s;  that  there  was  no  authoi'ity  of  law  or  regu- 
lations under  which  shipment  of  his  household  goods  and  private 
mounts  could  be  made  as  requested,  nor  could  forage  be  furnished 
under  his  present  status;  and  that  in  view  of  the  fact  that  he  had 

207 


268       DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE   GENEEAL. 

been  or  sick  report  since  March  5,  1013.  that  his  disability  Avas  re- 
garded as  permanent,  and  that  at  hist  report  he  was  not  able  to 
leave  the  hospital,  no  order  could  properly  be  issued  assigning  him 
to  a  new  station  for  the  purpose  of  giving  him  the  allowances  re- 
quested. 

(72-333,  J.  A.  G.,  Aug.  G,  1913.) 


BAGGAGE :  Change  of  station  allowance  of,  of  officer  assigned  to  his  regi- 
ment prior  to  the  expiration  of  the  four-ytar  period  of  his  detail  with 
higher  rank  in  a  staff  department. 

A  first  lieutenant  of  the  Coast  Artillery  Corps  was  detailed  for  a 
period  of  four  years  as  captain  in  the  Ordnance  Department.  He 
was  relieved  and  assigned  to  a  company  of  the  Coast  Artillery  Corps 
to  take  effect  on  a  date  prior  to  the  expiration  of  the  four-year 
period  of  his  detail.  The  cjuestion  arose  as  to  Avhether  he  was 
entitled  to  the  change  of  station  allowance  of  baggage  of  a  captain 
or  of  a  first  lieutenant  upon  his  personal  property  shipped  by  the 
Quartermaster's  Department  on  the  date  said  assignment  took  effect. 

Ileld^  that  he  resumed  his  rank  of  a  first  lieutenant  on  that  date 
and  would  be  entitled  to  the  authorized  change  of  station  allowance 
of  bngsase  of  a  first  lieutenant  only. 

(94-233,  J.  A.  G.,  Aug.  16,  1913.) 


COMPTROLLER  OF  THE   TREASURY:   Final   authority  in  the   decision 
of  all  questions  on  accounting. 

The  question  raised  was  whether  the  Comptroller  in  construing  a 
statute  authorizing  the  expenditure  of  public  funds  could  annul 
Army  regulations  nuide  in  pursuance  of  the  express  terms  of  an  act 
of  Congress,  or,  in  other  w^ords,  whether  his  authority  was  sufficient 
to  nullify  an  existing  and  public  regulation  of  the  President  of  the 
United  States  for  the  guidance  and  control  of  the  Army.  It  was 
urged  that  under  such  a  situation  any  officer,  although  he  might 
observe  regulations  Avith  exactness,  might  find  himself  ruined  finan- 
cially through  some  such  decision  when  in  emergency  he  had  large 
affairs  to  negotiate. 

Held.,  that  it  is  Avell  settled  that  the  Comptroller  as  the  law  officer 
of  the  accounting  officers  is  vested  by  law  with  final  authority  to 
decide  all  questions  upon  accounting  properly  submitted  to  him, 
and  to  construe  all  statutes  upon  the  authority  of  wdiich  disburse- 
ments of  public  funds  are  made,  and  that  appeal  from  action  taken 
by  him  in  matters  that  fall  under  his  jurisdiction  lies  only  to  the 
courts;  that  as  he  is  the  depository  of  final  authority  to  construe 
all  statutes  under  which  disbursements  of  public  funds  are  made, 
it  necessarily  follows  that  if  his  construction  of  such  a  statute  should 
bring  it  into  conflict  with  a  departmental  regulation,  said  construc- 
tion would  nullify  the  regulation. 

(72-311,  J.  A.  G.,  Aug.  23,  1913.) 


DIGEST   OF   OPINIONS  OF    THE   JUDGE   ADVOCATE   GENERAL.       269 

CONTRACTS:    Claim  for  services  rendered  in  excess  of  what  can  be  shown 
under  the  contract. 

A  contract  for  supplying  electric  current  to  the  United  States 
required  the  contracting  company  to  furnish,  maintain,  and  read 
watt  meters,  and  provided  that  "in  case  of  failure  of  any  meter 
during  any  month  the  monthly  consumption  "  for  that  month  "  will 
be  found  iDy  adding  the  consumption  of  the  previous  month  to  the 
consumiDtion  for  the  following  month,  dividing  the  sum  by  two"; 
and  that  *"  all  meters  will  be  calibrated  at  reasonable  intervals  to  in- 
sure their  accuracy."  The  company  claimed  payment  for  current 
supposed  to  have  been  used  in  excess  of  that  shown  by  the  meter 
readings  between  January,  1912,  and  the  last  of  February,  1013, 
when  the  meter  was  rewired  and  calibrated,  it  appearing  from  a 
comparison  of  the  amount  of  the  current  used  before  and  after  the 
correction  of  the  meter  with  the  amount  of  work  done  that  the  meter 
registered  only  about  64  per  cent  of  the  current  actually  used.  It  is 
stated  that  the  cost  of  the  operation  of  the  plant  under  the  erroneous 
readings  of  the  meter  is  approximately  what  the  company  pre- 
viously claimed  it  conld  be  operated  for;  and  that  had  it  been 
knowm  to  the  proper  officer  that  the  meter  was  inaccurate,  and  that 
the  Government  was  consuming  so  much  larger  an  amount  of  cur- 
rent than  was  originally  anticipated,  steps  would  have  been  taken  to 
have  the  contractor  comply  with  the  requirements  of  the  contract 
relative  to  the  proper  adjustment  of  the  meter,  and  to  reduce  current 
consumption  in  order  that  the  plant  might  be  operated  more  economi- 
cally. 

IleJcl^  that  as  the  contract  provided  for  payment  according  to  meter 
measurement,  except  as  expressly  stipulated  therein,  and  imposed 
upon  the  company  the  duty  of  furnishing  the  meters  and  having  them 
corrected  at  reasonable  intervals  to  insure  their  accuracy;  that  as  the 
Government  had  made  payments  in  accordance  w'ith  the  meter  read- 
ings and  since,  if  the  claim  of  the  company  should  be  allowed,  the 
Government  would  have  suffered  through  the  laches  of  the  company, 
the  claim  should  be  disallowed ;  that  the  department  should  take  the 
position  that  under  the  terms  of  the  contract  it  is  only  bound  to  pay 
the  company  according  to  the  meter  readings  except  as  specifically 
stated  therein,  and  that  the  company  is  estopped  by  its  o\vn  laches  as 
well  as  by  the  terms  of  the  contract  from  showing  that  the  readings 
were  inaccurate. 

(76-741,  J.  A.  G.,  Aug.  12,  1913.) 


CONTRACTS :   Damages  for  delay  in  completion  of  work. 

A  contractor  for  electrical  installation  submitted  a  claim  for  an 
amount  withheld  from  the  final  vouchers  under  his  contract  as  daui- 
tiges  for  delay  in  completion  of  the  work  beyond  the  date  fixed  in 
the  contract.  The  amount  deducted  represented  the  difference  in  cost 
to  the  Government  in  operating  the  old  acetylene  gas  lighting  sys- 
tem and  the  new  electric  lighting  svstem  fi-om  January  1,  1913.  the 
date  of  expiration  of  the  contract,  to  March  28,  1913,  the  date  upon 
which  the  work  was  completed.    The  deduction  was  made  upon  the 


270       DIGEST   OF  OPINIONS   OF    THE    JUDGE   ADVOCATE    GENERAL. 

findings  of  the  constructing  quartermaster  that  the  company  was  not 
ready  to  commence  the  installation  of  electric  fixtures  until  January 
1,  1913,  and  the  Chief  of  the  Quartermaster  Corps  stated  further  that 
it  appeared  to  be  indisputable  that  this  contractor  could  not  have 
completed  his  contract  sooner  than  March  28,  1913,  even  if  current 
had  been  available  on  November  1,  1912,  instead  of  January  23,  1913. 
The  company  disputed  these  statements,  insisting  that  it  was  ready 
to  install  fixtures  December  1,  1912,  submitting  freight  receipts  show- 
ing that  a  large  quantity  of  fixtures  were  on  hand  on  that  date,  and 
that  it  could  have  completed  the  work  within  the  contract  period 
had  the  current  been  delivered  on  time.  It  appears  that  the  current 
was  not  furnished  until  January  23,  1913,  and  that  it  was  not  prac- 
ticable under  the  contract  to  commence  the  work  of  installation  until 
the  current  was  available. 

Held,,  that  as  the  current  was  not  furnished  until  January  23,  1913, 
the  contractor  could  not  be  charged  with  the  damages  in  question  on 
the  doubtful  finding  that  even  if  the  current  had  been  available  the 
work  could  not  have  been  completed  sooner  than  March  28,  1913,  and 
advised  that  the  amount  deducted  on  the  final  vouchers  should  l^e 
paid  to  the  contractor. 

(76-620,  J.  A.  G.,  Aug.  8,  1913.) 


CONTRACTS:   Deductions  to  cover  loss  or  damage  sustained  by  the  United 
States  by  reason  of  delay  in  completion. 

On  June  22,  1912,  a  contract  for  furnishing  and  installing  one 
motor-driven  triplex  pump,  with  foundation,  etc.,  was  signed.  This 
contract,  which  contained  a  provision  that  the  work  specified  therein 
should  commence  on  or  before  June  30,  1912,  and  be  completed  on 
or  before  November  6,  1912,  and  a  further  provision  making  the  con- 
tract subject  to  the  approval  of  the  Quartermaster  General  (now 
Chief  of  the  Quartermaster  Corps) ,  was  not  approved  until  Novem- 
ber 1,  1912,  on  which  date  there  was  also  approved  a  supplementary 
contract  extending  the  time  limit  for  completion  of  the  work  from 
November  6,  1912,  to  January  6,  1913.  The  work  was  not  completed 
until  May  24,  1913.  Upon  payment  being  made  there  was  deducted 
the  cost  of  superintendence  and  inspection  from  January  7  to  May 
24,  1913,  and  the  cost  to  the  United  States  of  the  coal  used  during 
that  period  over  what  would  have  been  used  had  the  contractors  com- 
pleted their  work  on  January  6,  1913.  The  contractors  claimed  that 
the  deduction  instead  of  covering  the  period  from  January  7  to  May 
24,  should  cover  only  the  period  from  March  18  to  May  24,  alleging 
that  as  in  the  original  contract  the  date  of  completion  was  set  137 
days  after  the  date  of  signing  the  contract  they  were  in  equity  en- 
titled to  137  days  after  the  delayed  approval  of  the  contract  in  which 
to  complete  the  work,  which  would  fix  March  17,  1913,  as  the  date 
of  completion. 

Ueld^  that  the  supplementary  contract,  extending  from  November 
6,  1912,  to  January  6,  1913,  the  time  of  completion  specified  in  the 
original  contract,  was  made  at  a  time  when  there  had  already  been 
long  delay  in  the  approval  of  the  original  contract;  that  it  was  no 
doubt  in  view  of  this  delay  and  of  the  causes  which  led  to  this  delay 
that  the  parties  entered  into  the  supplementary  contract  in  which 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       271 

it  was  agreed  that  the  work  shouki  bo  completed  on  ov  before  Jaiuiury 
6,  1913;  that  although  at  the  time  of  entering  into  this  supplenien- 
tary  agreement  the  contractors  might  perhaps  reasonably  have  vuged 
that  they  should  be  granted  as  numy  days  from  the  date  of  approval 
of  the  original  contract  as  was  allowed  in  the  first  instance  between 
the  date  upon  which  the  work  was  to  be  begun  and  the  date  ui)on 
which  it  was  to  be  completed,  no  such  provision  was  incorporated 
into  the  supplementary  agreement;  and  that  the  joint  effect  of  the 
two  instruments,  original  and  supplementary,  was  definitely  to  fix 
January  6,  1913,  as  the  ultimate  date  of  completion  and  to  make  the 
contractors  chargeable  with  any  loss  or  damage  sustained  i)y  tiio 
United  States  after  that  date  by  reason  of  the  contractors'  failure  to 
complete  the  work  on  or  before  that  date. 
(76-711,  J.  A.  G.,  Aug.  18,  1913.) 


CONTRACTS:  Impossibility  of  performance,  due  to  act  of  God. 

A  firm  of  contractors  contracted  to  deliver  to  the  United  States 
at  Kansas  City,  Mo.,  or  at  points  in  the  vicinity  of  Yates  Center, 
Kans.,  1,500  tons  of  "  Kansas  upland  prairie  hay  "  during  the  months 
of  August  and  September,  1918,  for  shipment  to  the  Philippine 
Isands.  There  was  a  shortage  of  the  hay  crop  due  to  a  drought  in 
the  vicinity  where  it  was  contemplated  by  the  contract  that  the  hay 
of  the  kind  required  would  be  procured,  so  that  the  contractors 
were  unable  to  make  deliveries  in  accordance  with  the  requirements 
of  their  contract.  On  the  question  submitted  as  to  whether  the  cxjn- 
tract  could  legally  be  canceled. 

Held,  that  if,  by  reason  of  a  drought  in  that  vicinity,  the  contract 
had  become  impossible  of  performance  according  to  its  terms,  as 
distinguished  from  simply  more  difficult  to  perform,  the  contractors 
were  legally  released  from  the  performance  of  their  contract;  that 
the  contract  in  calling  for  "  Kansas  upland  prairie  hay  "  might  be 
construed  as  conditioned  on  the  existence  of  a  crop  of  such  hay; 
and  that  if,  by  reason  of  drought,  there  was  no  such  hay  procurable 
the  contract  could  not  be  performed  according  to  its  terms  and  the 
contractors  would  be  legally  relieved  on  the  ground  of  impossibility 
of  performance  according  to  the  terms  of  the  contract.  See  Digest 
J.  A.  G.,  1912,  p.  335,  X  C. 

(76-600,  J.  A.  G.,  Aug.  13,  1913.) 


DETACHED  SERVICE:  Status  of  officer  assigned  to  special  duty  as  in- 
structor of  regimental  recruits. 
A  second  lieutenant  of  Troop  L,  Fifth  Cavalry,  served  as  instruc- 
tor of  recruits  belonging  to  that  regiment.  While  on  that  duty  saul 
lieutenant  had  under  his  instruction  from  7  to  25  recruits  belonging 
to  Troop  L,  and  in  addition  thereto  the  recruits  belonging  to  the 
other  three  troops  of  the  third  squadron.  Fifth  Cavalry.  Those 
recruits  were  formed  into  separate  detachments  only  when  at  drdl, 
at  which  time  they  came  under  the  immediate  authority  and  super^ 
vision  of  said  lieu'tenant  as  instructor  of  recruits;  but  in  respect  of 
administration,  discipline,  quarters,  and  subsistence  each  recruit  was 
dealt  with  as  a  member  of  the  troop  to  which  he  had  been  assigned. 


272       DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEEAL. 

While  serving  as  instructor  of  said  recruits  said  lieutenant  per- 
formed his  duties  under  the  immediate  orders  of  the  regimental  com- 
mander; was  excused  from  all  other  duties;  was  not  subject  to  the 
orders  of  the  commanding  officer  of  Troop  L,  or  any  other  troop; 
and  was  carried  on  troop  and  regimental  returns  as  on  special  duty 
drilling  recruits.  The  question  submitted  was  whether  or  not  said 
lieutenant,  while  in  the  performance  of  the  duty  above  described,  was 
actually  present  for  duty  with  a  troop  of  Cavalry  within  the  meaning 
of  the  detached  service  legislation  of  August  24,  1912  (37  Stat.,  571, 
645),  the  question  being  accompanied  by  the  suggestion  that  as  the 
recruits  placed  under  the  lieutenant's  instruction  always  included  a 
number  belonging  to  the  troop  to  which  he  was  assigned,  his  case  is 
within  the  purview  of  paragraph  8,  General  Orders  No.  44,  War  De- 
partment, 1912,  which  reads  as  follows: 

"An  officer  actually  on  duty  with  a  detached  portion  of  his  troop, 
battery,  or  company  is  to  be  regarded  as  actually  present  for  duty 
with  his  organization." 

Ileld^  that  to  make  the  foregoing  rule  applicable  the  officer's  rela- 
tion to  the  detached  portion  of  the  troop  must  be  incidental  to  and 
must  flow  from  his  relation  to  the  troop  itself  (J.  A.  G.  O.,  6-124, 
Nov.  18,  1912;  Bulletin  No.  4,  War  Department,  1913,  p.  8);  that 
this  lieutenant  did  not  exercise  authority  over  the  recruits  of  Troop 
L  because  of  a  common  relation  to  said  troop;  that  his  duty  relations 
with  said  troop  had  been  terminated  for  the  time  being;  that  the 
authority  he  intermittently  exercised  over  L  troop  and  other  recruits 
was  exercised  in  pursuance  of  the  orders  of  his  regimental  com- 
mander; that  in  so  far  as  these  recruits  constituted  a  detachment  in 
any  sense  they  w^ere  a  detachment  of  the  regiment  or  squadron  and  not 
of  Troop  L;  that  the  status  of  this  lieutenant  was  that  of  an  officer 
detached  from  his  troop  and  assigned  to  the  special  duty  of  drilling 
recruits  belonging  to  the  squadron,  who  were  assembled  daily  for 
that  particular  purpose;  that  the  mere  fact  that  some  of  the  recruits 
under  his  instruction  at  daily  recruit  drill  came  from  the  troop  to 
which  he  stood  formally  assigned  at  the  time  could  not  serve  to  make 
his  performance  of  duty  with  this  body  of  recruits  duty  with  his 
troop  or  a  detached  portion  thereof  in  the  sense  of  the  detached- 
service  legislation  (J.  A.  G.  O.,  Jan.  15,  1913;  Bulletin  No.  4,  War 
Department,  1913,  pp.  6  and  7)  ;  and  that,  therefore,  while  in  the 
performance  of  the  duty  above  described,  he  was  not  actually  present 
for  duty  with  a  troop  of  cavalry  or  a  detachment  thereof  within  the 
meaning  of   the   detached-service   legislation   of  August   24,   1912. 

(6-124,  J.  A.  G.,  Aug.  14,  1913.) 


DISCHARGE  OF  SOLDIEB:  Under  a  seven-year  enlistment,  by  purchase 
or  on  account  of  the  dependency  of  his  parent;  can  he  be  recalled  to 
active  service? 

The  question  submitted  was  whether  in  the  case  of  a  soldier  enlisted 
for  a  term  of  seven  years  now  prescribed  by  law,  a  discharge  by  pur- 
chase or  on  account  of  the  dependency  of  a  parent  Would  serve  to  re- 
lieve the  soldier  from  the  liability  to  be  recalled  for  active  service 
which  rests  upon  a  soldier  furloughed  to  the  Army  reserve.  Both 
the  act  which  authorizes  his  discharge  by  purchase  (Sec.  4,  act  of 


DIGEST    OF    OPINIONS    OF    THE    JUDGE   ADVOCATE    GENERAL.        273 

June  1(),  1890,  26  Stat,  157)  and  the  act  which  authorizes  discharge 
on  account  of  the  dependency  of  a  soldier's  parent  (sec.  30,  act  of 
Feb.  2,  1001,  31  Stat.,  750)  provide  for  the  complete  separation  of  a 
discharged  soldier  from  the  military  service.  Section  2  of  the  act  of 
August  24,  1912  (37  Stat.,  590),  which  section  prescribes  a  seven- 
year  term  of  enlistment  and  provides  foi-  the  establishment  of  an 
Army  reserve  contains  a  proviso  to  the  effect — 

"  That  except  upon  reenlistment  after  four  years'  service  or  as  now 
otherwise  provided  for  by  law,  no  enlisted  man  shall  receive  a  final 
discharge  until  the  expiration  of  his  seven-year  term  of  enlistment, 
including  his  term  of  service  in  the  Army  Keserve,     *     *     *." 

Held,  that  the  effect  of  the  language  "  or  as  now  otherwise  pro- 
vided for  by  law,"  as  employed  in  the  statute  prescribing  the  seven- 
year  term  of  enlistment  and  providing  for  the  establishment  of  an 
Army  reserve,  is  to  continue  in  force  in  respect  of  the  soldier  who 
enlists  under  the  terms  and  conditions  proscribed  in  that  statute,  the 
provisions  of  the  acts  of  June  16,  1890,  and  February  2,  1901,  relating 
to  discharge  by  purcliase  or  on  account  of  the  dependency  of  a  parent, 
and  that  a  discharge  by  purchase  or  on  account  of  the  dependency 
of  a  parent  granted  to  a  soldier  enlisted  for  the  term  of  seven  years 
now  prescribed  by  law  accomplishes  a  complete  separation  of  the 
soldier  from  the  service  and  therefore  relieves  him  from  any  liability 
to  be  recalled  for  active  service  during  the  unexpired  portion  of  the 
seven-year  term  for  which  he  had  been  enlisted. 

(6-300,  J.  A.  G.,  Aug.  15,  1913.) 


DISCIPLINE:  Disease  the  result  of  a  soldier's  own  misconduct;  can  he 
be  brought  to  trial  and  punished  for  failure  to  disclose  the  fact  that 
he  is  suflfering  therefrom? 

The  question  submitted  was  whether  a  soldier  might  properly  be 
brought  to  trial  and  punished  for  failing  to  disclose  the  fact  that  he 
was  suffering  from  a  venereal  disease,  in  view  of  the  fact  that  such 
disclosure  might  subject  him  to  loss  of  pay,  under  the  provisions  of  the 
Army  appropriation  act  of  March  2,  1913  (37  Stat.,  706),  or  subject 
him  to  trial  pursuant  to  the  provisions  of  General  Order  No.  17, 
W.  D.,  1912.  The  said  act  of  March  2,  1913,  which  repeats  in  sub- 
stance a  similar  provision  in  the  Army  appropriation  act  of  August 
25,  1912  (37  Stat.,  572),  provides  in  effect  that  no  officer  or  enlisted 
man  shall  receive  pay  from  the  appropriations  therein  contained  for 
time  while  absent  from  active  duty  on  account  of  sickness  resulting 
from  his  own  intemperate  use  of  drugs,  or  alcoholic  li(|uors,  or  other 
misconduct.  This  office  held  in  an  opinion  dated  January  31,  1913, 
that  General  Order  No.  17  could  not  be  made  the  basis  for  the  punish- 
ment of  a  soldier  for  disobedience  of  its  provisions,  even  though 
brought  to  his  attention;  that  the  order  was  addressed  to  command- 
ing officers  and  imposed  upon  them  the  duty  of  requiring  enlisted 
men  to  observe  the  sanitary  precautions  mentioned;  and  that  in  oi-dor 
to  render  enlisted  men  liable  to  punishment  pursuant  to  said  order, 
special  instructions  should  be  issued  by  commanding  officers,  re- 
quiring soldiers  to  observe  the  prescribed  precautions.  In  the  case 
under  consideration  post  orders  were  issued   requiring  compliance 

93668°— 17 18 


274        DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

with  the  terms  of  said  General  Order  No.  17,  and  under  the  terms 
of  said  orders  a  soldier  failing  to  report  himself  for  the  preventive 
treatment  therein  provided  for,  after  exposure  to  the  danger  of  con- 
tracting venereal  disease,  becomes  subject  to  trial  by  court-martifA 
for  such  failure,  if  it  afterwards  develops  that  he  became  infected 
through  such  exposure.  After  the  publication  of  the  post  orders  the 
existence  of  a  venereal  disease  became  a  material  part  of  the  offense 
for  which  the  soldier  might  be  punished,  and  which  must  be  proved 
in  order  to  make  out  the  offense. 

Held^  that  an  enlisted  man  could  not  legally  be  punished  for  fail- 
ing to  disclose  facts  which  would  amount  to  a  confession  or  an  ad- 
mission of  an  offense  for  which  he  might  be  punished,  or  which 
might  amount  to  an  admission  of  a  material  fact  constituting  a 
portion  of  sucli  offense;  that  the  punishment  of  a  soldier  for  failing 
to  disclose  his  condition  in  cases  like  the  one  under  consideration 
would  amount  to  an  infliction  of  a  punishment  for  failure  to  volun- 
teer material  evidence  against  himself;  that  it  would  not  be  a  viola- 
tion of  his  rights  to  compel  the  soldier  to  submit  to  a  proper  ex- 
amination to  determine  whether  or  not  he  was  suffering  from  venereal 
or  other  disease;  but  that  no  soldier  should  be  brought  to  trial  for  not 
disclosing  his  condition  in  that  respect. 

(72-210,  J.  A.  G.,  Aug.  5,  1913.) 


EIGHT-HOUR  LAW:   Do  deck  hands  and  stokers  on  G-overnment  vessels 
come  within  its  provisions? 

Five  deck  hands  and  one  stoker  employed  on  dredges  engaged  in 
river  and  harbor  improvements  were  dismissed  because  they  refused 
to  render  additional  service  of  two  hours  each  per  day  in  order  to 
relieve  overworked  watchmen.  Complaint  was  made  that  said  em- 
ployees were  dismissed  for  refusing  to  work  10  hours  per  day,  in 
alleged  violation  of  the  eight-hour  law  of  March  3,  1913  (37  Stat., 
726),  which  reads  in  part  as  follows: 

"  That  the  service  and  employment  *  *  *  of  all  persons  who 
are  now,  or  may  hereafter  be,  employed  by  the  Government  of  the 
United  States  or  the  District  of  Columbia,  or  any  contractor  or  sub- 
contractor to  perform  services  similar  to  those  of  laborers  and  me- 
chanics in  connection  with  dredging  or  rock  excavation  in  any 
river  or  harbor  of  the  United  States  or  of  the  District  of  Columbia 
is  hereby  limited  and  restricted  to  eight  hours  in  any  one  calendar 
day;  and  it  shall  be  unlawful  *  *  *  to  require  or  permit  any 
such  *  *  *  person  employed  to  perform  services  similar  to  those 
of  laborers  and  mechanics  in  connection  with  dredging  or  rock  ex- 
cavation in  any  river  or  harbor  of  the  United  States  or  of  the  Dis- 
trict of  Columbia,  to  work  more  than  eight  hours  in  any  calendar 
day,  except  in  case  of  extraordinary  emergency:  Provided^  That 
nothing  in  this  act  shall  apply  or  be  construed  to  apply  to  persons 
employed  in  connection  with  dredging  or  rock  excavation  in  any 
river  or  harbor  of  the  United  States  or  of  the  District  of  Columbia 
while  not  directly  operating  dredging  or  rock-excavating  machinery 
or  tools     *     *     *." 

Held,,  that  in  view  of  the  decision  of  the  Supreme  Court  in  the 
case  of  Ellis  v.  United  States  (206  U.  S.,  246),  that  crews  of  tugs, 


DIGEST  OF   OPINIONS  OF    THE   JUDGE   ADVOCATE   GENERAL.       275 

SCOWS,  and  dredges  were  not  laborers  or  mechanics  within  the  mean- 
ing of  the  eight-hour  law  of  August  1,  1892  (27  Stat.,  340),  but 
belonged  in  the  distinctive  class  of  seamen,  deck  hands,  and  stokers 
employed  upon  dredges,  being  a  part  of  the  crews  of  the  dredges, 
must  also  be  placed  under  the  same  classification;  that  under  the 
terms  of  the  act  of  March  3,  1913,  supra^  they  could  not  be  con- 
sidered as  persons  employed  to  perform  services  similar  to  those  of 
laborers  or  mechanics  in  connection  with  dredging,  as  there  was, 
legally  speaking,  no  similarity  between  such  services;  and  that 
the  law,  having  sharply  distinguished  the  crew  from  laborers  and 
mechanics,  had  oy  the  same  token  distinguished  between  the  services 
of  the  two  classes,  and,  furthermore,  that  the  proviso  of  said  act 
limiting  its  application  to  persons  employed  and  directly  operating 
dredging  or  rock-excavating  machinery  or  tools  excluded  from  the 
benefits  of  the  act  all  persons  not  so  employed,  including  deck  hands 
and  stokers. 

Held.,  furthe}\  that  for  the  reasons  given  the  district  engineer 
officer  had  authority  to  require  deck  hands  and  stokers  of  the  crews 
of  dredges  employed  by  him  to  remain  on  the  dredges  for  more  than 
eight  hours  in  a  calendar  day,  and  that  he  was  legally  justified  in 
dismissing  those  deck  hands  and  stokers  who  refused  to  obey  his 
directions. 

(32-221,  J.  A.  G.,  Aug.  29,  1913.) 


EIGHT-HOUR  LAW:   Telegraph  operators  not  laborers  or  mecliaiiics. 

Upon  the  question  submitted  as  to  whether  a  telegraph  oj^erator 
is  a  laborer  or  mechanic  within  the  meaning  of  the  eight-hour 
statute. 

Field,,  that  it  may  be  said  without  hesitation  that  he  is  not  a 
mechanic;  that,  as  his  manual  labor  is  attended  by  a  far  greater 
amount  of  technical  skill  and  brain  exertion,  he  may  be  considered 
not  as  one  who  labors  principally  with  his  physical  powers,  but  as 
one  whose  services  consist  mainly  of  work  requiring  mental  skill; 
that  the  element  of  mental  skill  and  brain  power  so  largely  enters 
into  his  work  that  the  term  "  laborer  "  used  in  the  law  does  not  apply 
to  him,  and  that  he  is  not,  therefore,  either  a  mechanic  or  a  laborer 
within  the  meaning  of  the  eight-hour  statute. 

(32-223,  J.  A.  G.,  Aug.  13,  1913.) 


MILITARY   RESERVATIONS:   Right   of  the  United  States  to  require  a 
telegraph   company  to   remove   its  pole   line   from   an   avenue   which 
had  formerly  extended  throug'h  lands  now  occupied  by  the  reserva- 
tion and  which  was  subsequently  closed. 
A  municipality  had  granted  to  a  telegraph  company  a  franchise 
to  extend  a  telegraph  line  along  an  avenue  of  the  city,  which  ave- 
nue  adjoined  on  one  side  a   military  reservation   and  marked  the 
limits  of  the  reservation  in  that  direction.    Subsequently  the  Ignited 
States   acquired   a  tract   adjoining  this  avenue  on   the  other  side 
thereof  from  the  reservation  for  an  addition  to  the  reservation,  iijion 
which  the  old  avenue  was  closed  and  a  new  avenue  was  opened  up 


276       DIGEST    OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

alongside  of  the  new  boundary  of  the  reservation  and  extending  in 
the  same  direction.  Upon  the  question  as  to  the  legal  right  of  the 
Government  to  compel  the  removal  of  this  telegraph  pole  line  from 
the  site  formerly  occupied  along  the  old  avenue, 

Held^  That  the  granting  of  a  franchise  or  a  right  to  occupy  a  public 
road  for  the  purpose  of  a  telegraph  line  did  not  give  to  the  grantee 
the  right  to  occupy  the  land  after  the  public  road  has  been  discon- 
tinued by  lawful  authority;  that  the  municipality  in  this  case  had 
no  authority  to  grant  an  easement  over  the  land  covered  by  the 
roadway  but  only,  and  no  more  than,  a  license  to  occupy  the  road 
so  far  as  the  public  use  of  the  same  was  concerned,  and  that  when 
the  road  was  discontinued  the  land  reverted  to  the  owners  relieved 
of  the  public  easement  or  right  of  way  over  the  same,  and  the  in- 
cidental franchise  or  right  of  the  telegraph  company  to  occupy 
the  roadway  with  its  line  terminated;  that  the  municipality  could 
grant  no  greater  title  than  it  had  or  controlled ;  and  that  any  rights 
or  franchise  w^hich  it  might  grant  in  the  road  or  highway  was  sub- 
ordinate to  and  limited  by  the  extent  of  the  public  easement;  that 
the  right  to  locate  upon  a  public  road  was  an  additional  burden  to 
the  land;  and  that  the  legislature,  under  the  constitution  of  the 
State,  had  no  power  to  grant  to  the  municipal  authorities  the  right 
to  burden  the  fee  with  this  additional  easement  without  the  consent 
of  the  owner  thereof.  {Postal  Tel.  &  Cable  Co.  v.  Eaton^  170  111., 
513.) 

(80-621,  J.  A.  G.,  July  22,  1013.) 


MILITIA:  Equipment  of,  on  basis  of  war  strength. 

The  major  general  of  the  New  York  National  Guard  recommend- 
ed that  the  war  material  necessary  to  equip  the  National  Guard  of 
New  York  on  a  war  strength  in  that  State  be  issued,  and  stated  that, 
if  there  should  be  legal  objection  to  the  supply  by  the  War  Depart- 
ment of  the  property  involved  without  charging  the  same  against 
the  State's  allotment  of  Federal  funds,  the  War  Department  might 
legally  ship  (not  issue)  such  property  to  certain  indicated  supply 
depots  or  storehouses,  consigned  to  a  Federal  or  State  supply  officer 
for  the  purpose  of  storage  only. 

Held.,  that  there  was  no  authority  of  law  for  the  issuance  of  United 
States  arms,  accouterments,  and  equipments  to  the  militia  in  excess 
of  that  sufficient  to  arm  and  ecfuip  the  organized  part  of  such  militia 
as  provided  under  section  13  of  the  act  of  January  21.  1903  (32  Stat., 
777)  :  that  the  Government  might  arm  and  equip  that  part  and  no 
more,  and  that  the  issue  of  additional  supplies  would  not  be  war- 
ranted under  the  statute ;  held  further.,  that  there  was  no  authorit}'' 
by  which  an  officer  accountable  for  Government  property  could 
transfer  such  accountability  to  another  person  not  authorized  by 
law  to  receive  the  same,  and  hence  the  shipment  of  arms,  equipments, 
etc.,  in  addition  to  those  authorized  imder  the  act  of  January  21, 
1903,  to  an  officer  of  the  militia  even  without  formal  issue  would  be 
[without  authority;   that  if  the  shipment  was  made  to  a   Federal 


DIGEST    OF   OPINIONS   OP   THE   JUDGE  ADVOCATE   GENERAL.       277 

officer  at  several  different  points  in  the  State  as  suf^gested  he  woukl 
remain  responsible  and  accountable  for  the  property  without  being 
able  to  exercise  proper  care  and  control  over  the  same;  and  tha't 
such  disposition  also  of  War  Department  property  could  not  legally 
be  made. 

(80-120,  J.  A.  G.,  Aug.  13,  1913.) 


MOUNTED  OFnCERS:   Sufficiency  of   mount. 

A  captain  of  Cavalry  was  the  owner  of  a  mount  which  fulfiUed 
all  the  conditions  for  a  suitable  mount  required  by  Genei-:d  Order 
125,  War  Department,  1908.  and  also  fulfilled  all  the  conditions,  ex- 
cept as  to  height,  for  a  suitable  mount,  as  mentioned  in  (ieneral 
Order  29,  War  Department,  1911.  The  officer  appeared  to  have 
purchased  the  mount  before  the  receipt  of  the  general  orders  last 
mentioned  at  the  Arm}^  post  wdiere  he  was  serving  and  where  he 
was  in  command  of  the  post. 

Held.,  that  if  the  officer  before  the  receipt  of  said  General  Orders, 
No.  29,  purchased  the  horse  and,  as  commanding  officer  of  the  post, 
passed  it  as  a  suitable  mount  under  General  Order  125,  he  was 
entitled  to  pay  as  an  officer  furnishing  his  own  mount,  since  (General 
Order  29  continued  the  eligibility  of  a  horse  previously  declared 
suitable  for  a  mount. 

(72-142,  J.  A.  G.,  Aug.  14,  1913.) 


PAY   OF   ARMY:    Deduction   for   absence   from   duty   without    proper   au- 
thority; acting  dental  surgeons. 

The  act  of  March  3,  1911,  creating  the  Dental  Corps  in  the  Medi- 
cal Department,  provides: 

''Hereafter  there  shall  be  attached  to  the  Medical  Department  a 
<lental  corps,  which  shall  be  composed  of  dental  surgeons  and  acting 
dental  surgeons,  *  *  *.  All  original  appointments  to  the  dental 
corps  shall  be  as  acting  dental  surgeons,  who.  shall  have  the  same 
official  status,  pay,  and  allowances  as  the  contract  dental  surgeons 
now  authorized  by  law.     *     *     *  " 

Contracts  between  the  Surgeon  General  and  acting  dental  sur- 
geons contained  the  following  provision : 

"  The  said  Surgeon  General,  U.  S.  Army,  promises  and  agrees, 
on  behalf  of  the  United  States,  to  pay.  or  cause  to  be  paid,  to  the 
said ,  A.  D.  S.,  the  sum  of  one  hundred  and  fifty  dol- 
lars a  month  during  the  continuance  of  this  contract,  both  when  on 
duty  and  when  absent  therefrom  by  proper  authority." 

An  acting  dental  surgeon  was  reported  absent  from  duty  on  sick 
report  because  of  a  disease  contracted  through  his  own  misconduct 
and  not  in  line  of  duty. 

Held,  that  absence  from  duty  under  the  conditions  stated  coull 
not  be  characterized  as  absence  "by  jiroper  authority,"  and  that  un- 
der- the  terms  of  his  contract  the  acting  dental  ^^urgeon  was  not  en- 
titled to  pay  during  the  period  of  such  absence. 

(6-227.3,  J.  A.  G.,  July  28,  1913.) 


278       DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

PUBLIC  PROPERTY:  Army  stores  awaiting-  shipment  in  a  railway  freight 
depot  destroyed  by  fire. 

Stores  belonging  to  the  United  States  were  delivered  by  various 
dealers  in  Boston  to  a  certain  railroad  with  instructions  that  the 
dealers  take  shipping  receipts  to  be  indorsed  "  Government  bill  of 
lading  to  follow  for  each  consignment  to  each  post."  The  bill  of 
lading  for  all  the  stores  in  question  was  made  out  by  the  quarter- 
master and  mailed  to  the  railroad  agent  during  the  afternoon  of 
February  26,  1913.  The  stores  were  destroyed  by  fire  in  the  freight 
depot  that  night  at  11.45  p.  m.  The  railroad  company  claims  that 
the  receipts  show  that  the  shipment  was  delivered  to  the  railroad  a 
number  of  days  prior  to  the  fire  and  was  held  in  the  freight  house 
pending  receipt  of  the  Government  bill  of  lading;  that  the  articles 
composing  this  shipment  came  from  various  concerns  in  the  city 
with  notations  on  their  shipping  receipts  that  they  be  held  for  the 
Government  bill  of  lading ;  that  the  goods  were  held  by  the  railroad 
not  as  a  common  carrier  but  as  a  warehouseman,  as  they  were  not 
actually  in  transit  or  ready  to  go  forward. 

Held^  that  if  the  shipment  could  not  have  been  made  without  this 
bill  of  lading  and  if  it  was  not  received  by  the  railroad  company 
before  the  fire,  the  liability  of  the  company  would  be  that  of  a  ware- 
houseman and  not  that  of  a  common  carrier;  that  in  that  case  the 
company  would  be  liable  only  for  negligence  or  the  want  of  ordinary 
care  of  the  property,  and  the  burden  would  rest  upon  the  plaintiff 
to  prove  the  negligence ;  that  on  the  other  hand  if  it  was  incumbent 
upon  the  railroad  company  to  have  shipped  these  stores  without 
Avaiting  for  the  bill  of  lading,  or  if  it  could  be  shown  that  the  bill 
of  lading  reached  the  railroad  agent  before  the  fire,  then  the  liability 
of  the  railroad  company  would  be  that  of  a  common  carrier  respon- 
sible for  the  full  value  of  the  goods  which  were  destroyed. 

(80-013.  J.  A.  G.,  Aug.  20,  1913.) 


PUBLIC  PROPERTY:  Land,  purchase  of;  when  title  becomes  vested  in  the 
United  States. 

The  question  as  to  when  the  title  to  land  purchased  becomes  vested 
in  the  United  States  arose  in  connection  with  the  payment  of  rent 
for  the  period  from  July  1  to  17,  1913,  upon  a  tract  of  land  that  had 
been  leased  to  June  30,  1913,  with  option  to  purchase,  it  appearing 
that  the  deed  of  sale  of  the  property  to  the  United  States  had  been 
signed  and  delivered,  and  that  the  title  had  been  approved  by  the 
Attorney  General  prior  to  July  1,  1913. 

Held^  that  deeds  of  sale  of  land  to  the  Government  are  delivered 
with  the  intention  that  they  shall  become  operative  when  the  Attor- 
ney General  approves  the  title  {Ryan  v.  United  States^  136  U.  S., 
86),  and  that  since  in  this  case  the  Attorney  General  approved  the 
title  before  July  1  the  title  to  the  property  became  vested  in  the 
United  States  before  that  date,  and  hence  rent  for  the  period  from 
Julv  1  to  17  could  not  be  paid. 

(80-214.13,  J.  A.  G.,  Aug.  28,  1913.) 


DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       279 

PUBLIC  PROPERTY:  Loss  of,  due  to  fault  of  officer,  agent,  or  employee. 

Upon  a  question  as  to  the  legal  right  of  the  department  to  with- 
hold from  the  pay  of  the  superintendent  of  the  Antietam  battle- 
field the  sum  of  $110  to  cover  the  value  of  the  Government  property 
for  which  said  superintendent  was  responsible  and  which,  it  was 
alleged,  had  been  destroyed  by  fire  as  the  result  of  his  misconduct, 

Held^  that  it  is  an  established  rule  that  in  an  action  by  a  servant  to 
recover  wages  the  master  may  show,  by  way  of  set-off  or  defense  to 
the  claim,  injuries  to  his  property  caused  by  the  servant's  negligence, 
misconduct,  or  lack  of  due  diligence  in  the  performance  of  his  duties; 
and  that  acceptance  of  the  position  of  superintendent  of  the  iVn- 
tietam  battlefield  served  to  establish  the  relation  of  employer  and 
employee,  or  master  and  servant,  between  Ihe  Government  and  the 
incumbent  of  the  position,  and  justified  the  official  charged  with 
supervising  and  paying  said  superintendent  in  invoking  the  forego- 
ing rule  if,  through  the  neglect  of  the  latter,  public  property  was 
damaged  or  destroyed ; 

Held  furtJier^  that  the  superintendent  of  the  Antietam  battlefield 
w\as  a  civilian  employee  within  the  meaning  of  paragraph  699,  Army 
Regulations,  1910,  which  provides  that — 

"  If  articles  of  public  property  are  embezzled,  or  lost  or  damaged 
through  neglect,  by  a  civilian  employee,  the  value  or  damage  as  as- 
certained (and  by  a  survey  if  necessary)  shall  be  charged  to  him  and 
set  against  any  pay  or  money  due  him";  and  as  such  civilian  em- 
ployee his  pay  was  subject  to  deduction  under  the  conditions  specified 
in  said  regulation; 

And  held  further^  that  as  the  superintendent  of  the  Antietam  bat- 
tlefield was  appointed  by  the  head  of  an  executive  department  pur- 
suant to  statutory  authority  (act  of  Aug.  24,  1912,  37  Stat.,  440, 
and  act  of  June '23,  1913,  Pub.  No.  3,  p.  31),  and  the  designation 
applied  to  the  position  in  said  statutes  implied  that  said  superintend- 
ent was  to  be  intrusted  with  the  immediate  possession  and  safe- 
keeping of  the  public  property  pertaining  to  said  battlefield,  he 
should  be  regarded  as  an  officer  or  agent  of  the  Government  within 
the  meaning  of  the  act  of  March  29,  1894  (28  Stat.,  47)  ;  and  that  as 
such  officer  or  agent  his  account  with  the  Government  might  be 
debited  with  the  amount  of  any  loss  sustained  by  the  Government, 
through  his  fault,  in  respect  of  property  intrusted  to  his  care. 

(80-121,  J.  A.  G.,  Aug.  13,  1913.) 


TRANSPORTATION:    Cost    of,    of    soldier    convicted    of    absence    without 
leave. 

A  soldier  convicted  by  a  court-martial  of  absence  without  leave 
was  charged  with  the  expenses  incurred  in  transporting  him  from 
the  place  of  apprehension  to  the  place  of  his  trial.  The  question 
submitted  was  whether  he  could  also  be  charged  with  the  oxixMise.s 
incurred  in  transporting  him  from  the  place  of  his  trial  to  the  station 
of  his  company. 

Held,  that  where  a  soldier  had  been  tried  and  convicted  as  m  this 
case,  and  the  cost  of  his  transportation  from  the  place  of  apprehen- 


280        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

sion  to  the  place  of  his  trial  had  been  deducted  from  his  pay  he 
could  not  thereafter  be  charged  with  the  further  expense  of  his  trans- 
portation from  the  place  of  trial  to  his  station. 
(94-241,  J.  A.  G.,  Aug.  6,  1913.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  Generul.) 

ABSENCE:  Erom  duty  on  account  of  injury  due  to  misconduct. 

The  act  of  August  24,  1912  (37  Stat.,  572),  provides  that— 

"  No  officer  or  enlisted  man  in  active  service  who  shall  be  absent 
from  duty  on  account  of  disease  resulting  from  his  own  intemperate 
use  of  drugs,  or  alcoholic  liquors,  or  other  misconduct,  shall  receive 
pay  for  the  period  of  such  absence  from  any  part  of  the  appropria- 
tion in  this  act  for  the  pay  of  officers  or  enlisted  men,  the  time  so 
absent  and  the  cause  thereof  to  be  ascertained  under  such  procedure 
and  regulations  as  may  be  prescribed  by  the  Secretary  of  War." 

A  private  of  cavalry  became  unfit  for  duty  November  10,  1912, 
by  reason  of  loss  of  vision,  left  eye,  due  to  rupture  of  eyeball,  acci- 
dentally incurred  November  10,  1912,  by  elbow  of  a  comrade  while 
engaged  in  a  drunken  brawl,  not  in  line  of  duty.  He  was  discharged 
March  15,  1913,  "  on  account  of  loss  of  vision,  left  eye,  due  to  rupture 
of  eyeball.  Disease  not  incurred  in  line  of  duty."  Upon  the  question 
as  to  whether  his  pay  for  the  above  period  was  properly  withheld, 

Ileld^  that  absence  with  consequent  loss  of  pay  within  the  meaning 
of  the  above  act  must  be  on  account  of  disease ;  that  where  there 
was  disease,  the  determination  of  "the  cause  thereof"  was  to  be 
reached  according  to  the  procedure  and  regulations  established,  and 
such  procedure  and  regulations  must  be  understood  and  construed  to 
relate  to  disease  and  the  manner  of  determining  its  cause  and  the 
duration  of  the  absence  resulting  therefrom ;  that  it  appeared  that 
the  disability  on  account  of  which  the  soldier  was  absent  and  finally 
discharged  was  due  to  an  injury  and  not  a  disease,  and  hence  the  case 
did  not  come  within  the  purview  of  the  act  of  August  24,  1912,  and 
the  regulations  made  by  the  Secretary  of  War  in  pursuance  thereof; 
that  said  act  dealt  with  absence  on  account  of  disease  and  not  on 
account  of  injury^  and.  being  in  the  nature  of  a  penal  statute,  must  be 
construed  strictly. 

(Acst.  Comp.  W.  W.  Warwick,  Aug.  4,  1913.) 


COMMUTATION  OF   QUARTERS:   Public  quarters  at  post  fully  occupied 
through  assignments  to  officers  in  excess  of  their  authorized  allowances. 

The  Auditor  submitted  to  the  Comptroller  for  approval,  disap- 
proval, or  modification  his  decision,  as  follows: 

"  That,  when  it  is  certified  to  this  office  by  the  proper  officer  on 
a  voucher  for  payment  of  commutation  of  quarters  that  the  officer 
to  whom  payment  is  made  is  on  duty  Avithout  troops,  and  that  the 


DIGEST   OF    OPINIONS    OF    THE    JUDGE   ADVOCATE   GENERAL.       281 

public  quarters  at  the  post  or  station  at  which  he  is  serving  are 
fully  occupied,  it  is  the  duty  of  this  office  to  admit  such  voucher 
regardless  of  the  fact  that  it  is  known  tliat  the  officers  occupying 
such  quarters  are  occupying  more  than  their  authorized  alloAvance 
of  rooms." 

Held,  that  with  but  very  few  exceptions  made  by  law  the  cer- 
tificate of  approval  of  an  officer  is  not  intended  to  be  conclusive  upon 
the  accounting  officers,  but  that  the  latter  must  render  a  decision  on 
the  legality  of  the  claim  for  payment  or  for  crediting  an  account 
upon  the  facts;  that  upon  them  is  cast  the  responsibility  for  securing 
the  facts  and  upon  other  officers  the  duty  of  furnishing  upon  reijuest 
such  evidence  in  addition  to  certificates  as  may  be  cailed  for  by  the 
accounting  officers;  that  this  right  to  call  for  evidence  is  inseparable 
from  the  duty  to  audit  and  to  decide  questions  of  law  and  fact,  and 
that  it  must  be  exercised  reasonably  as  must  any  public  duty,  but  that 
the  accounting  officer,  and  not  an  administrative  officer  incurring 
liabilities  or  expending  public  funds,  must  determine  the  extent  to 
which  it  may  be  necessary  to  go  in  any  ])articular  case  in  collecting 
the  evidence  to  establish  what  he  believes  to  be  the  essential  fact  as 
a  basis  for  decision :  that  the  certificate  that  public  quarters  at  a  post 
are  fully  occupied  should  be  accepted  as  prima  facie  evidence  of  the 
facts  underlying  the  conclusion  certified  to  but  should  not  be  con- 
sidered as  the  best  evidence  in  all  cases  nor  as  relieving  the  xVuditor 
of  responsibility  of  determining  the  facts  and  securing  the  evidence 
necessary  to  a  decision. 

Held  further,  that  the  fact  that  an  officer's  application  for  assign- 
ment oi  quarters  in  kind  was  denied  did  not  entitle  him  to  com- 
mutation of  quarters,  if  in  fact  there  were  public  quarters  at  tlie 
post  or  station  w^hich  might  have  been  assigned  to  him,  but  that, 
under  existing  conditions  as  to  construction  of  houses,  rooms  in 
excess  of  the  authorized  allowance  in  a  single  house  assigned  to  and 
occupied  by  an  officer  and  his  family  were  not  rooms  that  must 
necessarily  have  been  assigned  to  another  officer,  and  that  while  such 
conditions  existed  these  excess  rooms  were  not  quarters  and  probably 
ought  not  to  have  been  provided  with  furniture  or  light  or  separate 
heating;  that  commutation  of  quarters  for  an  officer  on  duty  at  a 
post  where  there  were  public  quarters  could  not  be  granted  bj^  an 
order;  that  the  facts  determined  the  right  and  that  when  the  onl}^ 
rooms  unoccupied  were  rooms  in  single  houses  in  excess  of  the  author- 
ized allowance  of  the  occupants  of  those  houses,  but  not  adapted  for 
separate  quarters,  there  were  no  public  quarters  within  the  meaning 
of  the  laAv,  but  that  the  contrary  was  true  where  there  were  quarters 
occupied  by  persons  not  entitled  to  quarters;  that  the  question 
whether  or  not  there  were  inhabitable  although  undesirable  public 
quarters  and  all  other  questions  involved  in  the  payment  of  conunu- 
tation  must  be  decided  by  the  Auditor  or  Comptroller  in  each  case, 
and  that  while  they  might  prefer  to  accept  the  decision  of  other 
officers  they  could  not  shift  their  duty  in  this  manner,  and  must 
accept  certificates  of  facts  and  conclusions  only  so  far  as  they  believed 
the  situation  justified  that  course. 

(Asst.  Comp.  W.  W.  Warwick,  Aug.  18,  1913.) 


282        DIGEST    OF    OPINIONS    OF    THE    JUEKiE    ADVOCATE    GENERAL. 

COMMUTATIOOSr  OF   QUARTEHS:   Status  of   officer  directed  to   retain  his 
station  where  no  duties  were  to  be  performed. 

An  officer  of  the  Second  Infantry  on  duty  at  the  Army  War  College 
was  relieved  from  duty  there  by  Special  Orders  No.  100,  War  De- 
partment, April  27,  1912.  to  take  effect  July  1,  1912,  and  by  Special 
Orders  No.  124,  War  Department,  May  25,  1912,  he  was  granted 
leave  of  absence  for  two  months  to  take  effect  upon  his  relief  from 
said  duty.  By  Special  Orders  No.  150,  War  Department,  June  26, 
1912,  he  was  transferred  from  the  Second  to  the  Ninth  Infantry. 
Under  date  of  June  26,  1912,  the  Adjutant  General's  Office  addressed 
a  letter  to  him,  of  which  the  following  is  an  extract : 

"  The  Secretary  of  War  directs  that,  upon  being  relieved  from  your 
present  duty,  you  retain  station  in  this  city  until  the  arrival  of  the 
Ninth  Infantry  at  its  stations  in  this  country,  and  that  upon  the 
expiration  of  your  leave,  you  join  the  station  designated  by  the  com- 
manding officer.  Ninth  Infantry." 

Held,  that  this  case  came  within  the  principal  of  the  decision  of 
the  Comptroller,  in  7  Comp.  Dec.  502,  where  he  held,  quoting  from 
the  syllabus : 

"An  officer  of  the  Army,  who  was  relieved  from  duty  in  Alabama, 
assigned  to  duty  as  special  inspector  of  the  Quartermaster's  Depart- 
ment, and  directed  to  proceed  from  Washington  to  various  points  in 
Cuba  and  to  take  station  at  Washington,  did  not  acquire  a  f)erma- 
nent  station  at  Washington,  and  he  is  not  entitled  to  commutation 
of  quarters ;  "  that  in  the  present  case  it  would  seem  that  the  purpose 
of  the  instructions  of  June  26,  1912,  swpra,  was  to  keep  the  officer  in 
a  commutation-of -quarters  status  after  his  relief  from  duty  at  the 
Army  War  College  on  July  1,  1912,  and  hence  he  would  not  be  en- 
titled to  commutation  of  quarters  after  July  1,  1912,  until  the  date 
upon  which  he  should  report  for  duty  with  his  organization. 

(Asst.  Comp.  W.  W.  Warwick,  June  18,  1913.) 


CONTRACTS:  Damage  for  delays  caused  by  the  United  States;  unliquidated 
damages. 

A  Government  dredging  contractor  was  delayed  in  commencing 
operations  upon  a  certain  portion  of  his  work  by  the  failure  of  the 
Government  inspector  to  lay  out  the  work,  which  failure  was  due  to 
the  loss  of  a  blue-print  map  which  had  been  mailed  to  the  inspector, 
but  had  not  been  received  by  him.  During  the  period  of  delay  the 
contractor's  plant  was  idle,  at  an  estimated  damage  or  cost  of  $300.41, 
for  which  a  bill  was  rendered  by  the  contractor  against  the  United 
States.  The  contract  provided  for  a  corresponding  extension  of  time 
for  the  completion  of  the  work  on  account  of  delays  caused  through 
the  fault  of  the  Government. 

Held,  that  as  the  contract  provided  a  method  for  determining  the 
damages  resulting  from  delays  caused  by  the  Government,  said 
method  was  exclusive  and  prohibited  the  allowance  of  any  other 
damages  (15  Comp.  Dec,  282;  16  id.,  714;  New  Jersey  Foundry  and, 
Machine  Co.  v.  Uinted  States,  44  Ct.  Cls.,  178)  ;  hetd  further,  that 
the  claim  was  one  for  unliquidated  damages,  which  the  executive 


DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.        283 

officers  of  the  Government  were  without  authority  to  settle  (Cramp  v. 
United  States,  216  U.  S.,  494). 

<;Oomp.  Geo,  E.  Downey,  An*?.  21,  1  OKI) 


CONTRIBUTED  FUNDS:  In  connection  with  authorized  work  of  improve- 
ment of  rivers  and  harbors. 

Section  8  of  the  river  and  harbor  act,  approved  March  4,  lOi:;  (;>7 
Stat.,  827),  provides  as  follows:  ^ 

"  That  the  Secretary  of  War  is  hereby  authorized  to  receive  from 
private  parties  such  funds  as  may  be  contributed  by  them  to  be 
expended  in  connection  with  funds  appropriated  by  the  United  States 
for  any  authorized  work  of  public  improvement  of  rivers  and  hav- 
bors,  whenever  such  work  ajid  expenditure  may  be  considered  by  tlie 
Chief  of  Engineers  as  advantageous  to  the  interests  of  navigation."' 

Held,  That  any  funds  received  by  the  Secretary  of  War  under  the 
provisions  of  the  above  se<:'tion  of  said  act  of  March  4,  1913,  should 
be  deposited  by  him  in  the  Treasury  of  the  United  States  as  a 
special  fund,  properly  designated  in  each  case  to  distinguish  it  from 
other  funds  where  it  would  be  subject  to  his  official  direction  the  same 
as  the  funds  appropriated  by  Congress  for  the  particular  objects  for 
which  such  funds  are  contrilDuted ;  that  the  amounts  of  the  disburse- 
ments of  such  special  funds  should  be  filed,  audited,  and  accounted 
for  the  same  as  the  funds  appropriated  by  Congress,  this  being  the 
onlv  way  of  keeping  proper  track  of  said  funds. 

(W.  W.  Warwick,  Asst.  Comp.,  July  17,  1913.) 


INSURANCE:   Disposition   of  moneys  received   from,   upon   dredges  being 
constructed  under  contract,  which  were  damaged  by  fire. 

Two  dredges  being  built  under  contract  for  the  Engineer  Depart- 
ment were  damaged  by  fire  in  the  contractor's  plant.  The  speci- 
fications to  the  contract  contained  the  following  provision  as  to 
insurance : 

"  The  contractor  shall  keep  the  dredges  or  component  parts  thereof 
insured  against  fire  and  marine  risks,  at  his  own  cost,  for  and  in 
behalf  of  the  United  States,  and  in  the  name  of  the  contracting 
officer,  to  at  least  the  fidl  amount  of  the  payments  which  shall  have 
been  made  by  the  United  States     *     *     *." 

The  loss  to  the  dredges  by  fire  was  reported  to  have  totaled 
$3,411.77,  which  amount  was  paid  to  the  contracting-  officer.  Of 
this  amount,  $1,603.27  represented  the  loss  on  material  for  which 
the  Government  had  already  paid,  and  the  balance,  $1,808.50,  i-ep- 
resented  the  amount  due  the  boiler  works  for  material  which  they 
had  furnished  but  for  which  thev  had  not  been  paid  by  the  dov- 
ernment.  The  question  submitted  was  as  to  what  disposition  should 
be  made  of  the  insurance  money  received. 

field,  that  the  amount  which  represented  the  loss  on  inateruil  tor 
which  the  Government  had  already  paid,  i.  e.,  $1,603.27,  should  be 
deposited  to  the  credit  of  the  appropriation  under  which  tliedn^lges 
were  being  constructed,  in  order  to  restore  the  proportion  that  ex- 


284       DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENEBAL. 

isted  in  the  case  of  each  dredge  before  the  fire  between  the  payments 
and  the  percentage  of  completion  of  the  work;  that  the  bahuice  of 
the  insurance  received,  $1,808.50,  shonkl  also  be  placed  to  the  credit 
of  the  appropriation  under  which  the  dredges  w  ere  being  constructed 
in  order  to  have  an  accounting  of  the  full  amount  of  insurance  paid, 
and  that  then  the  contractors  should  be  paid  fi'om  the  appropriation 
a  similar  amount  as  for  materials  furnished  under  the  contract  less 
the  proper  retained  percentages,  noting  on  the  voucher  that  the  pay- 
ment was  for  materials  lost  by  the  fire  and  not  paid  for  but  reim- 
bursed to  the  Government  in  that  amount  under  the  insurance  policy. 
(Asst.  Comp.  W.  W.  Warwick,  July  21,  1913.) 


SIX  MONTHS'  GRATTJITY  PAY :  What  constitutes  "  designation  "  within 
the  meaning  of  the  act  of  May  11,  1908. 

A  sergeant  of  cavalry  was  enlisted  January  <').  1911.  and  died  May 
3,^  1913.  On  the  day  of  his  enlistment  he  designated  his  mother  as 
his  beneficiary  to  receive  the  six  months'  gratuity  pay  in  the  event  of 
his  death.  She  died  May  5,  1912.  He  made  no  other  formal  desig- 
nation of  a  beneficiary,  but  on  July  4  he  wrote  to  his  sister  as  follows: 

"Nellie,  it  will  be  a  good  thing  for  you  to  keep  communications 
with  both  of  us  (meaning  his  brother  Thomas,  also  in  the  service,  and 
himself) ,  because  in  event  of  our  deaths  at  any  time  you  will  get  the 
six  months'  pay  from  the  IT.  S.  Of  course,  we  hope  nothing  hap- 
pens like  that,  but  if  it  does  would  just  as  leave  see  you  get  it  as  the 
U.  S.  keep  it." 

Members  of  his  troop  testified  to  the  handwriting  of  this  letter  as 
liis.  and  also  that  he  had  said  after  his  mother's  death  that  he  "  had 
nothing  to  do  with  his  money  except  to  help  his  sister,"  and  that  he 
intended  making  her  his  beneficiarv. 

Held,  that  the  act  of  May  11.  1908  (35  Stat..  108),  under  which  the 
payment  of  six  months'  gratuity  pay  is  authorized,  is  a  beneficial 
statute  and  should  be  liberally  construed ;  that  the  designations  there- 
under should  be  made  in  accordance  with  the  regulations  promul- 
gated by  the  Secretary  of  War  to  insure  against  fraud  and  mistake, 
and  that  "no  departure  from  the  regulations  should  be  recognized 
except  where  it  is  clear  there  has  been  an  infonnal  designation,  and 
that  it  is  entirely  free  from  doubt,  or  fraud,  or  mistake ;  "  that  in 
the  present  case  the  soldier's  letter  to  his  sister  did  not  contain  lan- 
guage amounting  to  a  gift  or  designation,  but  was  rather  the  state- 
ment of  a  supposed  fact;  that  the  testimony  of  the  member  of  his 
troop  that  he  intended  making  his  sister  his  beneficiary  was  not  the 
testimony  of  a  designation  Tmide  but  of  one  intended ^  to  he  made, 
and  that  under  the  facts  as  appearing  there  was  no  designation  of  a 
beneficiary  to  receive  his  six  months'  gratuity  pay,  within  the  mean- 
ing of  the  laws  and  regulations  governmg  the  same. 

(Asst.  Comp.  W.  W.  Warwick,  Aug.  2,  1913.) 


TRANSPORTATION:  Passenger;  party  rates. 

A  railroad  company  filed  a   claim  for  passenger  transportation 
service,  rendering  its  bills  on  the  basis  of  the  regular  single-fare 


DIGEST    OF    OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       285 

rates,  while  the  Auditor  in  the  settlement  of  the  claim  based  his 
nllowance  upon  the  party-fare  rates,  as  publislied  in  the  company's 
tariff.  It  appeared  that  the  company  in  the  publication  of  its  party- 
fare  rates  stipulated  that — 

"  These  fares  are  available  only  when  cash  is  paid  at  the  time  the 
ticket  is  issued." 

It  further  appeared  that  the  service  under  consideration  was  fur- 
nished on  requests  which  called  for  transportation  of  the  number  of 
men  indicated  but  without  specifying  party  ticket,  and  that  a  single 
ticket  foi-  the  entire  party  was  furnished  in  all  but  four  of  the 
recounts  included  in  the  claim  submitted  for  settlement;  and  that 
with  these  four  exceptions  the  class  of  service  received  was.  there- 
fore, party  service,  i.  e,,  the  transportation  of  a  number  of  persons 
on  a  single  ticket,  and  was  therefore,  subject  to  all  the  incidents  of 
party  service  on  the  part  of  both  the  travelers  and  of  the  railroad 
company.    Upon  an  appeal  from  the  Auditor's  settlement, 

Held^  that  party  tickets  having  been  furnished  the  Government, 
which  subjected  the  travelers  to  the  same  conditions  as  all  othei*  trav- 
elers on  party  tickets,  there  was  no  reason  why  the  Government 
should  pay  a  higher  rate  merely  because  the  service  was  not  paid  for 
at  the  time:  that  the  transportation  under  consideration  was  fur- 
nished in  accordance  with  the  long-established  practice  of  the  trans- 
portation companies  to  accept  Government  transportation  requests  in 
lieu  of  cash  and  furnish  the  transportation  indicated  thereon  and 
present  the  said  requests  to  the  proper  Government  officer  for  pny- 
ment;  and  that  when  the  transportation  was  so  furnished  the  onl}'' 
recognized  basis  of  payment  therefor  was  the  cash  basis;  that  the 
transportation  was,  therefore,  fu.rnished  the  Government  on  its  per- 
sonal credit,  which  was  considered  as  equivalent  to  cash  and  so 
accepted;  and  that  settlement  therefor  should  be  made  upon  that 
basis;  that  the  amount  to  be  allowed  should  be  determined  by  apply- 
ing the  party  rates  for  the  party  service  and  the  individual  rates  for 
individual  service ;  in  other  words,  by  applying  the  same  rates  as  are 
charged  the  public  for  like  and  similar  service. 

(Comp.  Geo.  E.  Downey,  Aug.  29,  1913.) 


TRANSPORTATION':    Personal    baggag-e    of    an    Army    ofl&cer    entitled    to 
mileage. 

An  Army  officer  traveling  abroad  under  conditions  which  entitled 
him  to  mileage  presented  his  accounts  containing  charges  for  trans- 
portation of  personal  baggage  amounting  to  150  pounds  or  less,  while 
so  traveling.    Paragraph  1137,  Army  Regulations,  1910,  provides: 

"An  officer  drawing  mileage  is  entitled  to  free  transportation  for 
150  pounds  of  baggage.  If  his  ticket  does  not  cover  the  full  l.")0 
pounds,  the  Quartermaster  Corps  Avill  furnish  transportation  for 
the  difference  as  excess  baggage." 

The  act  of  June  12,  190V;  (34  Stat.,  246).  provides: 

"  Hereafter  officers,  active  and  retired,  when  traveling  under  com- 
petent orders  without  troops,  and  retired  officers  who  have  so  trav- 
eled since  March  3,  1905,  shall  be  paid  seven  cents  per  mile,  and  no 


more.     '■     ""     * " 


286        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

Ileld^  that  the  statute  having  limited  the  allowance  of  a,n  officer 
traveling  under  conditions  which  entitle  him  to  mileage  to  7  cents 
per  mile  and  no  more,  the  payment  of  anything  in  addition  for  the 
transportaton  of  his  personal  baggage  while  so  traveling  was  not 
authorized,  and  that  said  paragraph  1137  of  the  Army  Regulations 
was  contrary  to  law  and  without  legal  effect. 

(Asst.  Comp.  W.  W.  Warwick,  July  29,  1913.) 


OPINIOlirS  OF  THE  ATTORITEY  GENEHAL. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

ABSENCE:  Leave  of,  to  an  officer  of  the  Engineer  Corps  to  permit  of  his 
employment  by  the  Interstate  Commerce  Commission. 

The  Secretary  of  War  submitted  the  question  as  to  whether  under 
the  provisions  of  section  1224,  Revised  Statutes,  he  was  authorized 
to  grant  leave  of  absence  to  an  officer  of  the  Engineer  Corps  in  order 
that  he  might  be  employed  by  the  Interstate  Commerce  Commission 
to  assist  in  the  valuation  of  properties  of  carriers  under  the  act  of 
March  1,  1913.    Said  section  provides — 

•'  No  officer  of  the  Army  shall  be  employed  on  civil  works  or  in- 
ternal improvements,  or  be  allowed  to  engage  in  the  service  of  any 
incorporated  company,  or  be  employed  as  acting  paymaster  or  dis- 
bursing agent  of  the  Indian  Department,  if  such  extra  employment 
requires  that  he  shall  be  separated  from  his  company,  regiment,  or 
corps,  or  if  it  shall  otherwise  interfere  with  the  performance  of  the 
military  duties  proper." 

Ileld^  that  the  above  section  applied  to  officers  of  the  Engineer 
Corps  as  well  as  to  other  officers  of  the  Army ;  that  the  kind  of  em- 
ployment proposed  was  employment  on  civil  works  or  internal  im- 
provements within  the  prohibition  of  said  section;  that  it  would 
require  the  officer  to  be  separated  from  his  company,  regiment,  or 
corps,  and  that  it  would  interfere  with  the  performance  of  his  mili- 
tary duties  proper,  both  of  which  conditions  likewise  come  within 
the  prohibition  of  said  section;  and  that,  therefore,  there  was  no 
legal  authority  for  granting  leave  of  absence  for  the  purpose  pro- 
posed. 

(Opin.  Atty.  Gen.  July  2,  1913.) 


ARMS  AND  MUNITIONS  OF  WAR:   Certain  articles  that  are  embraced 

within  the  term;  others  that  are  not. 

The  export  of  saddles,  bridles,  canteens,  and  carbine  scabbards  by 
merchants  in  the  United  States  to  merchants  in  Mexico  falls  within 
the  purview  of  the  President's  proclamation  of  March  14,  1912,  issued 
pursuant  to  joint  resolution  of  same  date  prohibiting  transportation 
of  arms  and  munitions  of  war  to  Mexico. 

(29  Opin.  394,  Apr.  20,  1912.) 

The  export  of  gun  grease  falls  within  the  prohibition  of  said  proc- 
lamation. 

(29  Opin.  414,  May  20,  1912.) 


DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       287 

The  export  of  paper  caps  for  toy  cap  pistols  does  not  fall  within 
the  prohibition  of  said  proclamation. 
(29  Opin.  571,  Nov.  18,  1912.) 

Wliether  the  export  of  certain  air  rifles  falls  within  the  prohibi- 
tion of  said  proclamation  is  a  question  of  fact  dependent  upon 
whether  they  can  be  used  in  the  destruction  of  life. 

(30  Opin."  9,  Jan.  6,  1913.) 


ARMS  AND   MUNITIONS   OF  WAR:   Provisions  and   clothing   for  use  of 
troops. 

The  Acting  Secretary  of  War,  under  date  of  August  5,  1913,  re- 
quested an  opinion  upon  the  following  subject,  namely: 

"Are  the  items  '  provisions '  and  '  clothing '  for  the  use  of  troops 
to  be  considered  as  embraced  within  the  term  '  munitions  of  war '  in 
contemplation  of  the  President's  proclamation  of  March  14,  1912, 
and  the  joint  resolution  of  Congress  of  the  same  date?" 

Said  joint  resolution  amended  the  joint  resolution  relating  to 
"coal  or  other  material  used  in  w^ar,"  approved  April  22,  1898  (30 
Stat.,  630).  The  resolution  as  amended  prohibits  the  export  of  arms 
or  munitions  of  war  to  any  country  in  which  according  to  the  Presi- 
dent's proclamation  conditions  of  violence  exist  which  are  promoted 
by  the  use  of  such  materials. 

Held.,  that  neither  provisions,  nor  ordinary,  as  distinguished  fi-om 
military,  clothing  fall  within  the  category  of  "munitions  of  war." 

(Opin.  Atty.  Gen.,  Aug.  11,  1913.) 


DECISION  OF  UNITED  STATES  COURT. 

(Digest  prepared  in  the  office  of  the  Judge  Advocate  General.) 

COURTS-MARTIAL:     United    States    Navy;    jurisdiction    and    pleadings; 
habeas  corpus. 

An  enlisted  man  of  the  Navy  had  been  tried  by  a  court-martial  for 
making,  under  oath,  false  and  contradictory  statements  concerning 
frauds  practiced  by  him  upon  the  United  States  in  conjunction  witli 
representatives  of  Government  contractors  from  whom  supplies  for 
the  Navy  were  purchased.  He  was  found  guilty  and  sentenced  to 
five  years'  imprisonment  at  hard  labor,  deprivation  of  pay  for  that 
period,  and  dishonorable  discharge  at  the  expiration  of  said  period 
of  five  years. 

1.  Article  8  of  the  articles  for  the  government  of  the  Navy  (IT.  S. 
Comp.  St.  1901,  p.  1105),  under  the  head  of  offenses  punishable  at 
the  discretion  of  a  court-martial,  provides  that  such  punishment  as 
the  court-martial  may  adjudge  may  be  inflicted  on  an,y  person  of  the 
Navy  who  is  guilty  of  profane  swearing,  falsehood,  drunkenness, 
gambling,  fraud,  theft,  and  any  other  scandalous  conduct  tending 
to  the  destruction  of  good  morals.  Held,  that  a  charge  against  a 
chief  commissary  steward  on  board  a  battleship  of  scandalous  con- 
duct tending  to  the  destruction  of  good  morals,  in  that  on  one  oc- 


288       DIGEST   OF    OPIlSriONS  OF    THE   JUDGE   ADVOCATE   GENERAL. 

casion  he  made  an  affidavit  confessing  certain  frauds  against  the 
Government  in  connection  with  supply  contractors  for  the  Govern- 
ment, while  on  another  occasion  he  testified  under  oath  before  a  duly 
constituted  court  of  inquiry,  and  denied  the  truth  of  his  former 
statement,  was  sufficient. 

2.  Constitution  of  the  United  States,  Article  I,  confers  on  Con- 
gress the  right  to  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces,  and  Article  III  gives  Congress  the  power 
to  create  certain  Federal  courts.  Held^  that  such  powers  are  inde- 
pendent of  each  other,  and  hence  that  determinations  of  military 
courts-martial  within  their  jurisdiction  are  not  reviewable  by  the 
civil  courts. 

3.  Where  a  charge  against  a  person  tried  by  a  military  court  is 
within  the  court's  jurisdiction,  and  is  authorized  by  the  Army  or 
Navy  regulations,  the  manner  of  setting  out  the  offense  is  a  matter 
of  pleading,  rather  than  jurisdiction,  the  sufficiency  of  which  is  for 
the  exclusive  determination  of  the  court-martial. 

4.  Where  a  court-martial  had  jurisdiction  to  try  petitioner  for  an 
offense  against  the  naval  regulations  and  to  impose  sentence  author- 
ized thereby,  a  civil  court  in  a  habeas  corpus  proceeding  could  only 
review  the  question  of  jurisdiction,  and  could  not  pass  on  alleged 
errors  of  law  committed  by  the  court-martial  or  on  the  severity  of 
the  sentence  imposed. 

{Ex  parte  Dickey^  U.  S.  District  Court,  District  of  Maine,  204 
Fed.  Rep.,  322.) 


BULLETIN  31. 

Bulletin  \  WAR  DEPARTMENT, 

No.  31.     J  Washington,  October-  10,  1913. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  September,  1913.  including  one  opinion 
for  August,  1913,  not  heretofore  published,  of  certain  decisions  of  the 
Comptroller  of  the  Treasury,  and  of  decisions  of  courts,  is  published 
for  the  information  of  the  service  in  aeneral. 
(2054671  C— A.  G.  O.) 
By  order  of  the  Secretary  of  War  : 

LEONARD  WOOD, 
Major  General,  Chief  of  t'Sta-ff. 
Official  : 

GEO.  ANDREWS, 

llie  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

APPROPRIATIONS:  Lump  sum;  payment  for  personal  services  from;  pro- 
motion to  places  of  the  same  designation. 

It  was  proposed  to  promote  certain  clerks  and  employees  of  the 
Signal  Service  at  large,  paid  from  lump-sum  appropriations,  to 
positions  of  the  same  designation,  at  the  same  places,  and  at  in- 
creased rates  of  compensation,  but  Avhich  rates  were  not  in  excess 
of  those  paid  for  the  same  or  similar  services  during  the  preceding 
fiscal  year.  Section  7  of  the  act  of  August  26,  1912  (37  Stat.,  626), 
as  amended  by  section  4  of  the  act  of  March  4,  1913  (37  Stat.,  790), 
provides — 

"  That  no  part  of  any  money  contained  herein  or  hereafter  appro- 
priated in  lump  sum  shall  be  available  for  the  payment  of  personal 
services  at  a  rate  of  compensation  in  excess  of  that  paid  for  the  same 
or  similar  services  during  the  preceding  fiscal  year;  nor  shall  any 
person  employed  at  a  specific  salary  be  hereafter  transferred  and 
hereafter  paid  from  a  lump-sum  appropriation  a  rate  of  compensa- 
tion greater  than  such  specific  salary,  and  the  heads  of  departments 
shall  cause  this  provision  to  be  enforced." 

Held,  that  it  was  not  the  purpose  of  this  law  to  forbid  promotions 
from  one  established  position  to  another  as  vacancies  might  occur, 
where  the  compensations  were  to  be  paid  from  lump-sum  appropria- 
tions, although  the  designations  might  be  the  same  and  the  duties 
more  or  less  similar,  and  that  where  such  positions  existed  during 
the  preceding  fiscal  year,  it  would  ordinanly  be  assumed  that  the 
duties  were  not  the  same  or  similar  Avithin  the  meaning  of  the  law: 
but  that  increases  in  compensation  without  change  of  position, 
although  given  for  increased  proficiency  or  experience  and  although 

93668°— 17 19  289 


290       DIGEST    OF    OPIXIOXS    OF    THE   JUDGE   ADVOCATE    GEXERAL. 

not  in  excess  of  the  rates  of  compensation  paid  for  the  same  or  simi- 
lar services  in  other  positions  during;  the  preceding  fiscal  year,  could 
not  hiwfully  be  made.  Held.,  therefore,  that  if  tlie  promotions  were 
to  fill  vacancies  in  established  positions  which  existerl  during  the  pre- 
ceding fiscal  year  thev  might  lawfully  be  made;  otherwise  not. 
(5-075,  J.  A.  G.,  Sept.  9,  1913.) 


BOND^:  Of  bidders  and  contractors  for  supplies;  annual  or  blanket  bonds. 

The  Chief  of  the  Quartermaster  Corps  submitted  a  plan  for  allow- 
ing prospective  bidders  and  contractors  to  file  annual  or  blanket 
bonds  covering  all  bids  to  be  made  by  them  within  a  stipulated  period 
and  the  performance  of  awards  or  contracts  thereunder. 

Held,  that  as  the  statute  did  not  require  guaranties  or  bonds  in 
respect  to  the  purchase  of  supplies  or  the  procurement  of  services 
for  the  Army,  there  was  no  legal  objection  to  adopting  a  form  of 
annual  bond  to  replace  the  guaranty  and  bond  required  by  regula- 
tions in  support  of  each  bid  and  contract,  respectively;  bnt  advised., 
owing  to  the  fact  that  in  fixing  the  penalty  in  bonds  guaranteeing  the 
performance  of  contracts  upon  public  works,  in  which  class  of  con- 
tracts the  statute  required  such  bonds,  the  claims  of  laborers  and 
material  men  must  be  considered,  the  matter  of  applying  the  pro- 
posed form  of  bond  to  contracts  for  the  construction  and  repair  of 
buildings  or  other  public  works  should  be  deferred  until  the  plan 
had  been  given  practical  application  in  respect  to  the  purchase  of 
supplies  and  procurement  of  services. 

(1-2-150,  J.  A.  G.,  Sept.  11,  1918.) 


CLERKS    AND     EMPLOYEES:     Hours    of    labor    on     Saturday;    working 
overtime. 

Certain  skilled  office  laborers  at  the  Army  Arsenal,  Philadelphia, 
Pa.,  refused  to  obey  the  order  of  the  commanding  officer  to  work 
Saturday  afternoons  during  the  month  of  August  in  order  to  bring 
np  the  work  of  the  office,  which  had  fallen  behind,  and  which,  in  con- 
nection with  the  necessity  for  the  speedy  manufacture  of  certain 
ammunition,  created  emergent  conditions  justifying  the  employment 
of  laborers  l^evond  the  time  for  a  legal  day's  work.  The  Executive 
order  of  June'25,  1909  (W.  D.  Circ.  No.  42,  July  6,  1909),  provided 
that  during  the  months  of  July,  August,  and  September  of  each 
year,  and  until  further  notice,  four  hours,  exclusive  of  the  time  for 
"luncheon,  should  constitute  a  day's  work  on  Saturdays  for  all  clerks 
and  other  employees  of  the  Federal  Government  wherever  employed, 
with  the  proviso  that — 

"  This  order  shall  not  apply  to  any  bureau  or  office  of  the  Gov- 
ernment, or  to  any  of  the  clerks  or  other  employees  thereof,  that 
might  for  special  public  reasons  be  excepted  therefrom  by  the  head 
of  the  department  having  supervision  or  control  of  such  bureau  or 
office." 

Held,  that  the  commanding  officer  of  the  arsenal  was  not  the 
"  head  of  the  department."  within  the  meaning  of  said  proviso,  who 
had  authority  to  except  the  clerks  or  employees  of  any  bureau  or 


DIGEST   03?    OPIXIOXS   OF    THE   JUDCiE   ADVOCATE   GENERAL.       201 

* 

office  under  his  control  from  tlio  oiocration  of  the  order,  l)ut  that  the 
power  to  make  such  exceptions  shouhl  be  limited  to  the  heads  of 
departments  as  the  term  is  commonly  understood. 

Held  juirthei\  that  the  effect  of  the  order  was  to  make  Saturdays 
during-  the  months  of  July,  August,  and  September  a  four-liour  day 
out  of  what  would  otherwise  have  been  an  eight-hour  day  and  subject 
to  the  same  limitations,  and  that  in  case  of  emergeii<y  the  liours 
might  be  extended  the  same  as  in  the  case  of  an  eight-hour  dav. 

(1(3--210,  J.  A.  G.,  Sept.  8.  1913.) 


CONTRACTS:   Alterations  and  extensions;  assent  of  sureties. 

An  opinion  was  desired  as  to  whether  the  assent  of  the  sureties  on 
the  contract  should  be  obtained  where  the  same  was  modified,  as  in 
the  case  referred  to,  by  materially  reducing  the  quantity  called  for, 
and  also  as  to  whether  it  Avas  necessar}'  to  have  such  assent  to  an  ex- 
tension of  the  contract,  in  view  of  the  fact  that  the  bcmd  covered  the 
original  performance  of  the  contract  "  as  well  during  any  period  of 
extension  of  said  contract  that  may  be  granted  on  the  part  of  the 
United  States  as  during  the  original  term  of  the  same.'"  The  ac- 
companying form  of  extension  used  by  the  Quartermaster  Corps  im- 
posed upon  the  contractor  responsibility  for  loss  by  fire  or  other 
cause,  and  gave  the  United  States  the  right  to  make  charges  for  in- 
spection and  for  damages,  and  to  take  over  the  Avork  from  the  con- 
tractor whenever,  in  the  opinion  of  the  officer  in  chai-ge  of  the  same, 
reasonable  and  satisfactory  progress  was  not  being  made,  together 
w'ith  the  right  to  use  the  contractor's  materials  and  appliances  for 
that  purpose. 

IleJd^  that  the  obligation  of  a  surety  is  strictly  construed,  and 
any  material  alteration,  without  his  consent,  of  the  contract  for 
the  performance  of  wdiich  he  is  obligated,  even  though  it  be  for  his 
benefit,  will  result  in  his  release:  and  held  farther,  that  the  consent 
of  the  surety  should  be  obtained  both  in  the  matter  of  the  modifi- 
cation and  of  the  extension  of  the  contract,  and  that  it  would  be  un- 
safe to  rely  upon  the  consent  to  an  extension  given  in  the  condition 
of  the  bond  should  the  extension  be  granted  under  the  conditions 
r)roposed. 

(76-100,  J.  A.  G.,  Sept.  26,  1913.) 


COPYRIGHTS:  Of  photographs  made  by  a  Government  employee. 

An  engineer  of  the  Coast  Artillery  School  detachment  at  Fort 
Monroe,  Va.,  requested  authority  to  copyright  photogi-aphs  made 
by  him  of  projectiles  and  gases  at  the  muzzles  of  guns  and  mortars, 
in  order  to  insure  that  they  would  not  be  used  for  advertising  piii-- 
poses  and  general  circulation.  The  question  was  raised  as  to  the 
propriety  and  legality  of  copyrighting  such  photographs  in  the 
name  of' the  director  of  the  school,  where  the  work  was  dmie,  or  \n 
the  name  of  the  secretary  of  the  school,  the  official  chara^-ter  of  tne 
officer  to  appear  in  the  copvright. 

Held,  that  under  the  copvright  law  no  person  is  entitled  to  a  copy- 
ri^rht   unless  he  is  the  '*  ar.thor.   inventor,  or  designer,   within   the 


292       DIGEST   OF    OPINIONS   OP    THE   JUDGE   ADVOCATE    GENEEAL. 

meaning  of  the  copyright  laws  " — that  is,  he  must  "  by  his  own  in- 
tellectual labor  and  skill  produce  a  work  new  and  original  in  itself," 
or  he  must  be  the  legal  representati^  e  or  assignee  of  such  person  (9 
Cyc.  10,  et  seq.).  Held,  therefore,  that  the  photographs  in  question 
could  not  be  copyi'ighted  in  the  name  of  the  officials  designated  ex- 
cept in  the  character  of  assignee  of  the  one  who  might  make  the 
photographs;  and  adrised,  that,  if  the  assignment  be  made,  it  be 
taken  by  the  official  for  and  on  behalf  of  the  United  States. 
(24-330,  J.  A.  G.,  Sept.  3,  1913.) 


DETACHED  SEE- VICE:    Forfeiture  of  pay  for  ordering  or  permitting  the 
same,  in  violation  of  law. 

The  Secretary  of  War  had  decided  upon  the  evidence  then  before 
him  that  a  certain  officer  of  the  Army  had  violated  the  provisions  of 
law  relative  to  detached  service  by  ordering  or  permitting  a  junior 
officer  to  remain  on  such  service  contrary  to  law,  and  had  ordered 
a  forfeiture  of  the  officer's  pay  in  accordance  with  the  following  pro- 
vision of  the  act  of  August  24,  1912  (37  Stat.,  571)  : 

"All  pay  and  allowances  shall  be  forfeited  by  any  superior  for 
any  period  during  which,  by  his  order,  or  his  permission,  or  by 
reason  of  his  failure  or  neglect  to  issue  or  cause  to  be  issued  the 
proper  order  or  instructions  at  the  proper  time,  any  officer  shall  be 
detached  or  permitted  to  remain  detached  in  violation  of  any  of 
the  terms  of  this  proviso." 

The  officer  stated  as  a  reason  why  his  pay  should  not  be  forfeited 
tliat  he- had  not  violated  the  law  intentionally. 

Held,  that  the  law  is  violated  when  the  acts  forbidden  by  it  are 
done;  and  advised  that  the  law  should  take  its  course  in  this  case. 
Assuming,  what  is  questional)le,  tliat  the  present  case  falls  within 
the  pardoning  power  of  the  President;  held  further,  that  the  order 
of  forfeiture  related  back  to  the  pay  of  tlie  superior  for  the  period 
during  which  the  junior  was  detached,  and  that  a  subsequent  pardon 
or  remission  would  not  restore  it. 

(6-124,  J.  A.  G.,  Sept.  8,  1913.) 


EIGHT-HOUR  LAW:  Extraordinary  emergency;  repair  of  cable  obstruct- 
ing navigation. 

A  wire  transmission  line  of  the  cable  at  Dam  Xo.  28  in  the  Ohio 
Eiver  broke,  and  together  with  a  half-inch  fall  line  dropped  into 
the  river.  Early  next  morning  certain  employees  of  the  Engineer 
Department  started  to  replace  the  broken  transmission  line.  Ordi- 
narily this  work  could  have  been  completed  in  one  day,  but  in  this 
case  the  old  transmission  line  got  fouled  between  the  carriers  of  the 
new  line  and  the  lines  became  so  entangled  that  at  quitting  time  they 
formed  a  complete  and  dangerous  obstruction  to  navigation  and 
could  not  be  slackened  or  tightened  sufficiently  to  clear  the  channel 
of  the  obstruction.  To  remove  this  obstruction  the  men  labored  in 
excess  of  eight  hours  in  one  day  upon  the  work. 


DIGEST    OF    OPINIONS    OF    THE    JUDG?:    ADVOCATE    GENERAL.        293 

Jlcld^  that  the  difliculty  due  to  the  entanglement  of  the  lines  was 
plainly  of  an  unusual  character,  not  inherent  in  the  work,  and  its 
occurrence  could  not  be  foreseen,  and  that  such  a  state  of  facts  con- 
stituted an  extraordinary  emergency  within  the  meaning  of  the 
eight-hour  law  of  March  3,  1913  (37'Stat.,  726),  and  justified  work- 
ing the  men  more  than  eight  hours  in  one  day. 

(32-!232,  J.  A.  G.,  Sept.  3,  1912.) 


EIGHT-HOUR  LAW:  Including'  provisions  of,  in  a  contract  for  renovating 
blankets. 

A  contract  was  to  be  entered  into  in  pursuance  of  an  advertise- 
ment and  award  for  renovating  blankets  for  the  Government  and  for 
folding  them  preparatory  to  shipment.- 

fields  that  the  process  of  renovation  was  similar  to  the  process  of 
laundering,  and  was  not  to  be  classed  as  a  process  of  manufacture; 
that  it  could  not,  therefore,  be  treated  as  the  manufacture  of  a  supply 
which  could  be  purchased  in  the  open  market  without  reference  to 
the  eight-hour  law  of  June  19,  1912  (37  Stat.,  137)  ;  and  that^  the 
provisions  cf  said  law  relating  to  the  extraction  of  a  penalty  for  a 
violation  of  its  requirements  should  be  inserted  in  the  contract. 

(76-720,  J.  A.  G.,  June  25,  1913.) 

Held  further^  that  the  provision  of  the  law  that  no  laborer  or 
mechanic  should  be  required  or  permitted  to  labor  more  than  eight 
hours  in  any  one  clay  upon  work  contemplated  by  the  contract,  did 
not  prohibit  such  laborer  or  mechanic,  after  working  eight  hours  in 
one  day  upon  a  Government  contract,  from  working  additional  time 
upon  some  other  contract.    29  Op.  Atty.  (Jen.,  534, 

(76-720,  J.  A.  G.,  Sept.  13,  1913.) 


INTERN ATIONAIi    CONGRESSES:    Participation    therein    by    the    United 
States  Government. 

,The  joint  resolution  of  June  25,  1910  (36  Stat.,  886),  provides: 
"That  the  President  of  the  United  States  be,  and  he  is  hereby, 
authorized  to  invite  the  International  Congress  of  Eefrigeration, 
now  about  to  assemble  in  the  city  of  Vieima,  to  hold  its  third  meet- 
ing in  the  United  States  of  AmeVica:  Provided^  That  no  appropria- 
tion shall  be  asked  or  granted  for  any  expense  connected  Avith  the 
said  congress." 

The  act  of  March  4.  1913  (37  Stat.,  913),  provides : 
"  Hereafter  the  Executive  shall  not  extend  or  accept  any  invita- 
tion to  participate  in  any  international  congress,  conference,  or  like 
event,  without  first  having  specific  authoi-ity  of  law  to  do  so." 

The  International  Congress  of  Refrigeration  was  to  be  held  at 
Chicago,  111.,  September  15  to  24,  1913.  and  an  in\itation  Avas  ex- 
tended to  the  War  Department  to  send  delegates  thereto. 

HeM.,  that,  while  it  might  be  questionable  whether  the  statute  for- 
bidding the  Executive  from  extending  or  acceptinir  any  invitation 
to  participate  in  any  international  congress  should  be  so  construed 


294       DIGEST   OF    OPINIONS    OF    THE    JUDGE   ADVOCATE   GENEKAL. 

as  to  fcrbicl  the  participation  of  the  department  in  such  a  congress 
as  the  one  under  consideration,  if  it  wonkl  n(.t  iuAolve  any  expendi- 
ture on  the  part  of  the  (xovernment,  there  could  be  no  legal  objection 
to  the  presence  in  said  congress  of  representatives  of  the  War  De- 
partment for  the  purpose  of  giving  or  receiving  information  regard- 
ing the  work  of  the  department  in  its  relation  to  the  objects  of  said 
congress,  where  such  presence  would  not  involve  any  expenditure 
on  the  part  of  the  United  States;  and  hchf  also,  that  the  Secretary 
might  legally  name  delegates  from  the  War  Department  to  attend 
said  congress,  if  all  the  expenses  incident  to  their  attendance  should 
be  def raved  bv  said  congress. 

(5-082,  J.  A.  G.,  Septal  and  17,  1913.) 


MEDICAL  ATTENDANCE:  Payment  for,  when  rendered  to  an  employee  of 
the  Mississippi  Eiver  Commission. 

An  employee  of  the  Mississippi  River  Commission  was  injured  in 
the  course  of  his  service  with  said  Commission,  and  a  bill  for  medical 
and  surgical  services  in  his  case,  rendered  at  the  request  of  the 
United  States  officials,  was  presented  for  payment.  The  Commission 
had  previously  issued  a  circular  containing  regulations  among  Avhich 
was  one  which  authorized  officers  in  charge  of  works  under  its  con- 
trol, in  case  of  sickness  or  injury  of  any  employee,  to  employ  a  physi- 
cian and  to  act  upon  his  advice  in  the  care  and  treatment  of  such 
employee,  and  in  a  proper  case  to  place  the  employee  in  a  hospital 
maintained  by  the  United  States,  or,  if  there  should  be  none  such 
within  reach,  to  place  him  in  a  private  hospital  and  to  pay  the  ex- 
pense of  his  care  and  treatment  therein. 

The  employees'  compensation  act  of  Mav  30,  1908  (35  Stat.,  556), 
provides  for  continuing  the  pny  of  any  artisan  or  laborer  injured  in 
the  employ  of  the  United  States  without  his  own  negligence,  while 
engaged,  among  other  things,  "  in  the  construction  of  river  and 
harbor  or  fortification  work." 

Held,  that  the  medical  treatment  in  this  case  related  to  the  services 
already  rendered  under  the  employee's  contract,  and  was  not  com- 
pensation for  the  injury  which  was  provided  for  in  the  act  of  May 
30,  1908.  or  an  enlargement  of  the  relief  granted  by  said  act,  and 
that  the  bill  might  be  approved  for  payment. 

(5-251,  J.  A.  G.,  Sept.  8,  1913.) 


MILITARY  INSTRUCTION:   Issue  of  arms  and  equipment  to  high  schools. 

The  question  was  submitted  as  to  whether  the  Government  favored 
tlse  giving  (if  military  instruction  to  students  of  high  schools  and 
whether  it  provided  aid  in  the  form  of  equipment  for  such  schools. 
Section  1225,  Revised  Statutes,  authorizes  the  detail  of  officers  of  the 
Army  and  the  issue  of  arms,  etc.,  for  military  instruction  "  upon  the 
application  of  any  established  military  institute,  seminary  or  acad- 
emy, college  or  university  within  the  ITnited  States,  having  capacity 
to  educate,  at  the  same  time,  not  less  than  150  male  students." 

Held,  that  schools  of  the  public-school  system  did  not  come  within 
the  description  '"  any  established  military  institute,  seminary  or  acad- 


DIGEST    OF    OPINIONS    OF    THE    JUDGE   ADVOCATE    GENERAL,        295 

emy,  college  or  university  *'  within  the  meaning  of  those  temis  as  used 
in  said  section  of  the  Re\  ised  Statutes,  and  that  the  (rovernment  offi- 
cials could  not  pi'ovide  aid  in  the  form  of  military  equipment  for 
instruction  at  a  high  school. 

^56-320,  J,  A.  G:,  Sept.  19.  1913.) 


MILITARY  RESERVATIONS:  Reg^ulating  the  practice  of  medicine  thereon; 
license  for  lighthouse  purposes. 

A  contagious  disease  had  l)ioken  out  in  the  family  of  a  lighthouse 
keeper  upon  the  Fort  ISIoultrie,  S.  C.,  militaiy  refiervation.  and  a 
civilian  physician  who  attended  the  family  failed  to  report  the  dis- 
ease or  to  place  the  family  in  quarantine,  in  consequence  of  which  tho 
disease  was  transmitted  to  the  family  of  a  soldier  residing  in  the 
vicinity.  The  only  record  in  the  office  as  to  the  occupancy  of  any 
portion  of  said  reser^'ation  for  lighthouse  purposes  was  a  letter  to 
the  Secretary  of  the  Treasur}'^  stating  that  authority  would  be  granted 
for  the  Lighthouse  Board  to  place  two  range  beacons  and  a  keeper's 
dwelling  on  the  reservation,  but  there  was  no  record  that  the  land 
occupied  for  such  purposes  was  ever  transferred  away  from  the  War 
Department.  Paragraph  302,  INIanual  for  the  Medical  Department, 
1911,  regulates  the  practice  of  civilian  physicians  on  military  reserva- 
tions and  places  upon  commanding  officers  of  posts  the  duty  of  taking 
proper  steps  for  checking  the  spread  of  infectious  or  contagious 
diseases. 

Held,  that  the  ground  occupied  for  lighthouse  pui-poses  still  re- 
mained a  part  of  the  reservation  and  continued  subject  to  ^uch  regu- 
lations of  the  War  Department  governing  military  reservations  as 
were  not,  inconsistent  with  the  permission  granted  to  occupy  said 
premises:  Held  fvrfher,  that  ample  authority  was  granted  by  tho 
regulations  for  regulating  the  practice  of  civilian  physicians  upon 
said  reservation  and  for  establishing  quarantines  thereon. 

(80-541.32,  J.  A.  G.,  Aug.  15,  1913.) 


PRISONERS:  Expense  of  holding  military,  by  civil  authorities;  appropria- 
tion chargeable. 

A  soldier  while  absent  from  his  company  without  leave  was  ar- 
rested by  a  constable  as  a  deserter.  On  being  notified  of  the  arrest, 
the  company  commander  telegraphed  the  constable  to  hold  the  pris- 
oner and  await  further  instructions.  Later  a  military  guard  was 
sent  to  the  place  where  the  soldier  was  held  in  custody,  to  whom  tho 
constable  delivered  the  prisoner.  No  charge  of  desertion  nv as  en- 
tered upon  the  company's  rolls  against  the  soldier  and  no  sufficient 
evidence  appeared  to  show  that  he  was  in  fact  a  deserter. 

Held,  that  all  expenses  properly  incurred  by  the  constable  after  the 
receipt  of  the  telegram  from  the  company  commander  to  hold  tho 
prisoner  for  further  instructions,  including  a  reasonable  compensa- 
tion for  guarding  the  prisoner,  as  well  as  reiml»iii-si>uient  for  cost  of 
meals  and  lodgings  on  his  account,  were  chargeable  to  the  Tnited 
States  and  should  be  paid  from  the  appropriation  for  contingencies 
of  the  Armv. 

(26-260,  J.  A.  a,  Sept.  6,  1913.) 


296        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

PUBLIC  PBOPERTY:  Donation  of  building  on  military  reservation  to  be 
used  for  public  worship. 

A  chaplain  in  the  Army,  under  permission  from  the  post  and 
department  authorities,  constructed  a  chapel  on  a  military  reserva- 
tion from  private  subscriptions  solicited  by  him,  with  the  under- 
standing that  the  chapel  would  be  available  for  the  use  of  all  chap- 
lains who  might  be  stationed  at  the  post,  without  regard  to  denomi- 
nation, and  that  upon  completion  the  building  would  be  presented 
to  the  United  States.  After  completion  a  formal  tender  of  the  build- 
ing to  the  Government  w  as  made. 

The  act  of  May  31,  1902  (32  Stat.,  282),  authorizes  the  Secretary 
of  War  to  permit  the  construction  by  the  Young  Men's  Christian 
Association  of  such  buildings  as  their  Avork  for  the  promotion  of  the 
"  welfare  of  the  garrisons  may  require." 

Held,  in  view  of  the  construction  heretofore  placed  upon  said  act  to 
the  effect  that  it  should  be  regarded  as  giving  the  assent  of  Congress 
to  the  construction  of  buildings  for  strictly  nonsectarian  uses  if  with- 
in the  purposes  specified,  although  not  constructed  by  the  particular 
body  named  in  the  statute,  that  the  Secretary  of  War  might  properly] 
accept  the  building  tendered,  for  the  purposes  stated,  and  that  there 
was  no  necessity  for  an  act  of  Congress  accepting  the  same.  _C.  22340, 
J.  A.  G.  O.,  April  17,  1908.    • 

(80-815.1.  J.  A.  G.,  Sept.  25,  1913.) 


TERillTORIES:  Public  lacds  in  Porto  Rico;  Uarbor  areas. 

The  Chief  of  the  Bureau  of  Insular  Affairs  asked  whether  the 
words  ''  harbor  areas  "  appearing  in  section  13  of  the  act  of  April  12, 
1900,  providing  revenues  and  a  civil  government  for  Porto  Eico  (31 
Stat.,  80),  could  be  construed  to  mean  those  areas  bounded  by  harbor 
lines  approved  by  the  Secretary  of  War.  Said  section  provided  that 
certain  described  property  in  Porto  Kico  acquired  by  the  United 
States  under  the  cession  from  Spain,  "  but  not  including  harbor  areas 
or  navigable  waters,"  should  be  placed  under  the  control  of  the 
government  established  by  the  act,  to  be  administered  for  the  benefit 
of  the  people  of  Porto  Rico,  and  power  was  given  the  legislative 
assembly  created  by  the  said  act  to  legislate  with  respect  to  all  such 
matters  as  it  might  deem  advisable,  subject  to  limitations  imposed 
upon  all  its  acts.  Afterwards  the  insular  government  claimed  owner- 
ship, though  without  specific  grant,  of  a  large  amount  of  public  do- 
main b}"  reason  of  the  former  grant  of  some  measure  of  autonomy  by 
the  Spanish  Constitutional  Monarchv,  and  accordinglv  the  act  of 
July  1.  1902  (32  Stat.,  731),  authorized  the  President,  within  one 
year  after  the  approval  of  the  act.  to  make  such  reservations  of  public 
lands  and  buildings  belonging  to  the  United  States  in  Porto  Rico  as 
he  might  deem  advisable  for  public  purposes,  and  further  provided 
that— 

'*A11  the  public  lands  and  buildings,  not  including  harbor  areas  and 
navigable  streams  and  bodies  of  water  and  the  submerged  lands 
imderlying  the  same,  owned  by  the  United  States  in  said  island  and 
not  so  reserved  be,  and  the  same  are  hereby,  granted  to  the  govern- 
ment of  Porto  Rico,  to  be  held  or  disposed  of  for  the  use  and  benefit 
of  the  people  of  said  island." 


DIGEST   OF   OPIXIOXS   OF    THE   JUDGE   ADVOCATE    GENERAL.       297 

Held,  that  the  term  "  harbor  areas''  was  used  in  the  two  acts  in  the 
same  sense:  that  the  hnidward  limit  of  such  areas  was  the  line  of 
ordinary  low-water  mark,  which  line,  though  iiregular  and  indetmite 
and  changing  by  accretion,  erosion,  or  avulsion,  marked  the  boun- 
daries of  Federal  ownership,  and  that  a  definite  or  more  regular  one 
could  not  be  chosen  foi-  convenience  by  fixing  harbor  lines  or  other- 
wise, without  authority  of  Congress. 

(92-300,  J.  A.  G.,  Sept.  15,  1913.) 


TRANSPORTATION:   Liability  of  common   carriers  for  the   loss  of  goods 
received  for  shipment. 

Pi"ope)'t,y  of  the  United  States  was  delivered  at  the  freight  depot 
of  a  railroad  company  by  various  dealers,  who  obtained  shipping 
receipts  bearing  the  notation  "  Government  bill  of  lading  to  follow." 
The  shipping  directions  sent  to  the  various  dealers  had  directed  the 
said  notation,  and  no  information  was  furnished  indicating  any  usage 
or  custom  to  ship  in  advance  of  the  execution  of  the  Government  bill 
of  lading,  save  that  one  item  of  the  property  in  (luestion  was  shipped 
in  this  manner.  The  Government  bill  of  lading  was  mailed  from 
the  office  of  the  depot  quartermaster,  but  before  it  had  had  time  to 
reach  its  destination  said  property  was  destroyed  by  fire  while  at 
said  depot. 

Held^  that  it  was  not  intended  that  the  property  should  be  shipped 
prior  to  the  execution  of  the  Government  bill  of  lading,  and  that  the 
carrier  was  justified  in  the  view^  that  said  notation  on  the  shipping 
receipt  Vv'as  equivalent  to  instruction  to  hold  the  property  for  a  Gov- 
ernment bill  of  lading.  Held  further,  that  as  the  property  was  not 
delivered  and  accepte^l  for  immediate  shipment,  the  liability  of  the 
railroad  company  was  that  of  warehouseman  only  and  not  that  of  a 
common  carrier. 

(80-013,  J.  A.  G.,  Sept.  19,  1913.) 


DECISIONS  OE  THE  COMPTEOLLEE  OF  THE  TEEASTJEY. 

(Digests  prepared  in  the  oflice  of  the  Judge  Advocate  rreneral.) 

APPROPRIATIONS:    Availability  for  transportation   of  material  used  in 
the  manufacture  of  engineer  equipment. 

The  question  was  submitted  for  decision  as  to  whether  the  cost  of 
transportation  of  lumber  and  other  material  used  in  the  fabrication 
of  pontoons  or  other  engineer  equipment  should  be  charged  to  the 
appropriation  "Engineer  equipment  of  troops"'  or  to  the  appropria- 
tion "  Transportation  of  the  Army  and  its  sui^plies." 

Held,  that  in  view  of  the  fact  that  the  appropriation  for  engineer 
equipment  of  troops  providing  for  the  purchase  of  jiontoon  niatenal 
made  no  provision  for  its  transportation,  the  authority  for  such 
transportation  from  said  appropriation  could  not  be  im]died,  espe- 
cially in  view  of  the  appropriation  made  for  the  transportation  of 
the  Army  and  its  supplies;  and  that  in  the  specific  case  presented  the 
transportation  of  the  material  purchased  was  a  proper  charge 
against  the  aj^propriation  for  Army  transportation. 
"  (Comp.  Geo.  E.  Downey,  Sept.  5.  1913.) 


298     DIGEST  or  opiNioxs  of  the  judge  advocate  general. 

GRATUITY  PAY:   Six  months,  on  deatli  of  soldier;  designation  of  bene- 
ficiary. 

A  soldier  died  in  the  service  from  a  diseaS'e  incurred  in  the  line  of 
duty  and  not  the  result  of  his  own  misconduct.  The  act  of  May  11, 
1908  (35  Stat.,  108),  as  amended  by  the  act  of  March  3,  1909  (35 
Stat.,  735),  provides  in  such  cases  for  the  payment  to  the  widow  of 
such  soldier  "  or  to  any  other  person  previously  designated  by  him  " 
of  an  amount  equal  to  six  months'  pay  of  the  soldier  at  the  rate  he 
was  receiving  at  the  time  of  his  death.  On  the  date  of  the  soldier's 
last  enlistment  he  executed  a  beneficiary  card  in  which  he  designated 
a  certain  person  by  name  as  his  beneficiary,  likewise  calling  her  his 
wife  and  giving  her  address.  After  his  death  it  appeared  that  the 
person  so  named  was  not  his  wife,  Avho  resided  at  another  place  and 
bore  a  different  Christian  name  and  from  whom  he  was  separated 
at  the  time  of  his  death. 

Held;  that  if  a  deceased  soldier  leaves  a  widow  but  designates 
another  as  his  beneficiary,  the  gratuity  is  payable  to  the  latter  instead 
of  to  the  widow,  and  that  if  in  the  case  considered  the  person  desig- 
nated could  be  ascertained,  although  erroneously  described  as  his 
wife  and  possibly  given  a  wrong  name,  she  would  be  entitled  to  the 
gratuity  provided  by  law. 

(Comp.  Geo.  E.  Downey,  Aug.  28,  1913.) 


heat  and  light  ALLOWANCE:  Officers  on  foreign  service;  validity  of 
reg'ulations. 

The  act  of  March  2,  1907,  fixing  the  number  of  rooms  to  which 
each  officer  of  the  Army  was  entitled  as  quarters,  further  provided 
(34  Stat,  1167)  that—' 

"Hereafter  the  heat  and  light  actually  necessary  for  the  author- 
ized allowance  of  quarters  for  officers  and  enlisted  men  shall  be  fur- 
nished at  the  expense  of  the  T^'^nited  States  under  such  regulations 
as  the  Secretary  of  War  may  prescribe." 

Paragraph  1060,  Army  Regulations  1910,  specified  the  number  of 
rooms  to  which  each  officer  was  entitled  and  the  fuel  allowance  per 
room  in  cords  of  oak  wood.  Paragraph  1052  of  said  regulations  pro- 
vided that — 

"  Each  officer  or  noncommissioned  officer  entitled  to  and  occupy- 
ing public  quarters,  or  quarters  other  than  public  which  are  heated 
by  a  separate  plant,  will  be  furnished  at  the  expense  of  the  United 
States  with  the  quantity  of  fuel  set  forth  in  the  table  of  allowances, 
paragraph  1060.  *  *  *  Where  an  officer  or  noncommissioned 
officer  is  occupying  quarters  other  than  public,  not  heated  by  a  sepa- 
rate plant,  or  for  which  it  is  impracticable  to  furnish  fuel  in  land, 
the  Quartermaster's  Department  will  pay  the  owner  or  authorized 
agent  of  such  quarters  for  the  heat  at  the  rate  of  $4  a  cord  for  the 
fuel  allowance  for  the  number  of  rooms  to  which  the  rank  of  the 
officer  or  noncommissioned  officer  entitles  his  as  set  forth  in  the 
table  of  allowances,  paragraph  1060." 

An  amendment  was  added  to  this  regulation  under  date  of  June 
22,  1912,  as  follows: 

'•Where  an  officer  or  noncommissioned  officer  on  detached  service 
in  a  foreign  country  occupies  quarters  other  than  public,  the  Qaar- 


DIGEST    OF    OPIXIONS    OF    THE    JUDGE    ADVOCATE    GENERAL,        299 

termaster's  Department  will  pay  tlie  owner  or  anthoi  i/a-iI  ujient  of 
such  (]iiarteiK  for  the  heat  furnished  in  accordance  with  the  i)re- 
scribed  allowance  for  the  number  of  rooms  to  which  the  rank  of  the 
officer  or  noncommissioned  officer  entitles  him.  at  the  local  rates  at 
the  place  where  he  is  serving."' 

The  Auditor  for  the  War  Department  submitted  his  decision  hold- 
m<r  that  said  regulations  were  void  in  so  far  as  they  authorized  the 
furnishino;  of  fuel  for  the  use  of  Army  officers  in  excess  of  that  actu- 
ally necessary  for  the  quarters  they  occupied,  not  exceedinsr  the  num- 
ber of  rooms  to  which  they  were  entitled  by  law.  and  that  unless  the 
paragraphs  were  amended  so  as  to  fix  approximately  the  value  of  the 
heat  actually  necessary  it  was  the  duty  of  the  accounting  officers  to 
fix  such  allowances  regardless  of  the  regulations.  The  particular 
case  was  cited  of  an  Army  officer  serving  as  a  military  attache 
abroad  whose  fuel  allowance  was  computed  upon  the  value  of  oak 
wood  at  the  point  of  service,  or  at  the  rate  of  about  $18  ])er  cord. 

Held,  that  upon  the  evidence  submitted  the  conclusion  would  not 
at  present  be  adopted  that  the  fuel  allowances  prescribed  in  the  regu- 
lations were  largely  in  excess  of  the  quantities  of  fuel  actually  neces- 
sary for  heating  the  authorized  allowance  of  quarters  for  officers,  and 
until  the  Secretary  of  War  had  had  time  to  consider  and  amend  said 
regulations  the  accounting  officers  would  continue  to  assume  that  the 
quantities  of  fuel  therein  prescribed  did  not  exceed  the  quantities 
necessary. 

With  reference  to  the  payment  of  the  value  of  the  fuel  allowance 
to  officers  on  detached  service  in  foreign  countries.  Held,  that  the 
amendment  to  the  regulations  authorizing  such  payment  at  the  local 
rate's  of  fuel  at  the  place  where  the  officer  is  serving,  should  l)e  in- 
terpreted as  requiring,  in  a  case  to  which  the  regulation  applies,  a 
computation  based  upon  the  value  of  the  equivalent  of  the  woml 
allowance  in  the  fuel  actually  used  at  the  local  i>rice  of  such  fuel 
and  not  upon  the  ]3rice  of  oak'wood  at  such  place  where  the  same  was 
not  actuallv  used  for  fuel. 

(Asst.  Comp.  W.  W.  Warwick,  Sept,  23,  1913.) 


PAY  OF  OFFICEHS:  Foi-eign-service  pay  while  traveling  abroad. 

An  officer  of  the  Army  was  directed,  as  a  member  of  a  cavalry 
board,  to  proceed  to  Berlin,  (iermany,  and  take  station  at  that  place 
"  for  the  purpose  of  observing  and  studying  the  cavalry  branch  of 
the  German  Armv,"  and  also  of  the  ai-mies  of  other  countries  enumer- 
ated. The  board  was  further  directed  to  "make  such  journeys  be- 
tween Berlin,  Germanv,  and  points  in  the  countries  herein  named  as 
may  be  necessarv."  In  accordance  with  these  orders  the  officer  left 
Berlin  and  traveled  to  various  points  in  the  countries  named  in  his 
orders.  Upon  the  completion  of  his  duties  at  one  of  said  points  he 
received  an  order  that  upon  the  completion  of  his  duties  abroad  per- 
taining to  the  cavalry  board  he  should  repair  to  Washington.  D,  C., 
for  temporary  dutv. "  He  complied  with  ihis  order  by  returning  di- 
rectly to  the'lTnited  States  from  the  point  last  named  without  re- 
turning to  his  station  in  Berlin, 

HeJd,  that  tlie  duties  performed  by  the  officer  at  the  various  i)lace.^ 
visited  were  incidental  to  his  assignment  to  his  station  at  Berlin,  so 


300       DIGEST    OF    OPINIONS   OF    THE   JUDGE   ADVOCATE    GENEEAL. 

that  his  station  remained  at  the  latter  place  until  he  left  for  the 
United  States,  and  that  the  officer  should  be  considered  as  having 
been  assigned  to  and  as  having  retained  station  at  Berlin  within  the 
meaning  of  the  act  of  March  2,  1901  (31  Stat.,  1903),  during  the 
period  in  question  and  not  as  having  been  in  a  traveling  status. 

Ileldf  therefore,  that  he  was  entitled  to  the  increased  pay  for  for- 
eign service  until  his  arrival  in  the  United  States. 

(Comp.  Geo.  E.  Downey,  Sept.  10,  1913.) 


QUARTEIIS:    Commutation    of,    w^hile    on    temporary    duty;    surrender    of 
quarters. 

An  officer  of  the  Army  while  occupying  quarters  at  an  Army  post 
was  ordered  to  report  in  person  to  the  Chief  of  Staif,  Washington, 
T>.  C.  for  temporary  duty.  The  auditor  disallowecl  payment  of 
commutation  of  quarters  while  the  officer  was  on  duty  in  Washington 
because  it  did  not  appear  that  he  was  directed  to  surrender  his 
quarters  during  his  temporary  absence  from  the  post.  It  appeared 
that  said  quarters  were  not  occupied  during  his  absence  by  any 
member  of  his  family  and  the  same  could  have  been  assigned  to 
other  officers. 

Held.,  that  an  order  directing  an  officer  to  surrender  his  quarters 
during  his  temporary  absence  was  not  necessary  under  the  circum- 
stances to  entitle  him  to  commutation  of  quarters  at  his  temporary 
station,  and  as  there  was  no  reason,  so  far  as  the  officer  was  con- 
cerned, why  these  quarters  might  not  have  been  assigned  to  some 
ether  officer,  he  was  entitled  to  the  commutation  paid.  The  disallow- 
ance of  the  auditor  was  therefore  reversed. 

(Comp.  Geo.  E.  Downey,  Sept.  10,  1913.) 

An  Army  officer  was  relieved  from  recruiting  duty  and  detailed 
to  obtain  military  information  abroad.  He  was  directed  to  repair  to 
Washington,  D.  C,  and  report  in  person  to  the  Chief  of  Staff  for 
temporarj^  duty  in  his  office,  and  at  the  expiration  of  said  duty  to 
proceed  to  his  station  abroad.  Commutation  of  quarters  during  his 
stay  in  Washington  was  disallowed  on  the  ground  that  the  tempo- 
rary duty  had  been  performed  while  the  officer  w-as  in  the  status  of 
changing  station  and  while  he  had  no  station. 

Held,  that  the  officer's  orders  clearly  assigned  him  to  temporary 
duty  at  Washington  before  going  to  his  foreign  station,  and  that, 
being  on  duty  without  troops  at  a  station  where  there  were  no  public 
quarters,  he  was  entitled  to  commutation  therefor. 

(Comp.  Geo.  E.  Downey,  Sept.  10,  1913.) 


TRANSPORTATION:  Of  attendant  in  charge  of  horses;  land-grant  deduc- 
tions. 

The  Government  shipped  three  horses,  in  charge  of  an  attendant, 
from  Fort  Worth,  Tex.,  by  way  of  New  Orleans,  La.,  to  Washington, 
D,  C,  under  an  agreement  previously  made  with  the  railroad  com- 
pany to  accept  therefor — 

"  the  lowest  net  rates  lawfully  available  as  derived  through  deduc- 
tions on  account  of  land-grant  distance  from  a  lawful  rate  filed  with 


DIGEST   OF   OPINIONS    OF    THE   JUDGE   ADVOCATE   GENERAL.       301 

tlie  Interstate  Commerce  Commission  npph'ing  from  point  of  origin 
to  destination  at  time  of  the  mo\ement." 

The  Auditor  settled  both  for  the  freight  and  for  the  attendant  on 
the  basis  of  rates  from  point  of  shipment  by  way  of  Cairo.  111.,  in. 
order  to  obtain  the  benefit  of  the  longest  land-grant  deduction  to 
^Yhich  the  CTOvernment  was  entitled.  P^ast  of  both  Cairo  and  New 
Orleans  the  attendant  was  entitled  to  be  cariied  free.  The  raih'o:id 
company  claimed  for  the  transportation  of  the  attendant  at  the  net 
i-ate  from  Fort  Worth  to  New  Orleans,  on  the  ground  that  the  trans- 
portation Avas  a  passenger  and  not  a  freight  movement,  and  should 
not  be  governed  by  the  same  considerations  that  fixed  the  lowest 
freight  rate,  which  the  company  had  agreed  to  accept,  citing  pas- 
senger classification  notice,  general  exceptions,  paragraph  D.  which 
provided  that — 

"Net  fares  established  via  land-grant  lines  through  Cairo  and 
Pophir  Bluff  will  not  be  equalized  by  other  routes.'' 

Held,  that  the  transportation  of  the  attendant  was  an  incident 
to  the  transportation  of  the  horses  and  constituted  an  item  in  the 
general  cost  of  such  transportation,  although  as  to  the  railroad  com- 
pany the  revenue  therefrom  might  be  considered  as  '*  passenger 
revenue."    The  Auditor's  settlement  was  therefore  affirmed. 

(Comp.  Geo.  E.  Downey,  Sept.  12.  1913.) 


TEANSPORTATION:   Commodity  and  class  rtites. 

On  revision  of  the  action  of  the  Auditor  for  the  War  Department 
on  a  claim  for  additional  freight  on  a  Government  shipment,  there 
appeared  to  be  tariff  authority  for  class  rate  as  applicable  as  a  pro- 
portionate rate  and  a  commodity  rate  of  equal  authority  affecting  the 
shipment.  Paragraph  7  (a),  Tariff'  Circular  No.  18-A,  of  the  In- 
terstate Commerce  Commission,  provides  that — 

"In  every  instance  where  a  conmiodity  rate  is  named  in  a  tariff 
upon  a  commodity  between  specified  points  such  commodity  rate  is 
the  lawful  rate  and  the  only  rate  that  may  be  used  with  relation  to 
that  traffic  between  those  points,  even  though  the  class  rate  or  some 
combination  may  make  low^er.  The  naming  of  the  commodity  rate 
on  any  article  or  character  of  traffic  takes  such  article  or  traffic  out  of 
the  classification  and  out  of  the  class  rates  between  the  points  to 
which  commodity  rate  applies." 

Held,  that  the  commodity  rate  named  in  the  tariff'  was  the  lawful 
rate  to  be  applied  to  the  shipment  between  the  points  involved 
although  in  excess  of  the  class  rate  between  said  points  on  the  ship- 
ment. 

(Comp.  Geo.  E.  Downey,  Sept.  16,  1913.) 


THANSPOBTATION:  Of  personal  baggage  of  officers  traveling  under  a 
mileage  status. 
The  Auditor  for  the  War  Department  submitted  to  the  Comp- 
troller his  decision  that  there  was  no  authority  of  law  for  the  trans- 
portation at  Dublic  expense  of  personal  baggage  accompanymg  an 
officer   on   a   journey   for   which   he  received   mileage,   regardless   ot 


302        DIGEST    OF    OPTXTOXS    OF    THE    JUDGE    ADVOCATE    GENEBAL. 

whether  such  journey  was  on  temporary  duty,  on  temporary  change 
of  station,  or  on  a  permanent  change  of  station,  and  that  so  much  of 
paragraphs  1138  and  1151,  Army  Regulations,  1910,  as  authorized  the 
transportation  of  excess  baggage  under  such  conditions  was  void. 

Said  paragraph  1138  of  the  Regulations  provided  for  the  trans- 
portation at  public  exi)€nse  of  the  personal  baggage  of  officers  travel- 
ing under  orders  up  to  150  pounds,  where  less  than  that  amount  was 
transported  free  for  each  passenger,  and  provided  also  for  the  trans- 
portation of  personal  baggage  in  excess  of  150  pounds  under  certain 
conditions.  Paragraph  1151  specified  the  amount  of  baggage  and 
household  effects  that  might  be  transported  for  an  officer  at  public  ex- 
pense upon  change  of  station,  which  amount  was  in  excess  of  that 
usually  transported  free  of  charge  under  regular  fares. 

Held^  that  the  term  "baggage"  had  two  significations:  First, 
articles  which  a  traveler  requires  or  takes  with  him  on  a  journey  for 
his  ])ersonal  use  or  convenience  and  with  reference  to  his  immediate 
necessities  or  to  the  ultimate  purposes  of  his  journey,  and  second,  to 
the  portable  equipment,  including  tents,  clothing,  utensils,  and  other 
necessaries  of  the  Army;  that  Congi'css,  in  appropriating  for  the 
transportation  of  the  Army  and  its  supplies,  including  transportation 
of  the  troops  '•'  and  their  baggage,  and  the  cost  of  packing  and 
crating  *'  the  same,  had  reference  to  the  latter  character  of  baggage, 
which  was  the  only  kind  of  baggage  for  which  the  law  had  made 
provision  for  shipment  at  public  expense,  except  as  personal  baggage 
was  included  in  the  mileage  allowance;  and  that  there  was  no  law 
which  authorized  the  transportation  at  public  expense  of  baggage 
as  the  term  was  used  in  the  first  sense  under  any  circumstances  out- 
side of  the  mileage  allowance.  With  this  explanation  the  decision 
of  the  Auditor  was  approved,  but  in  view  of  the  fact  that  payment 
for  transportation  of  baggage  in  the  personal  sense  had  been  the 
long-continued  practice,  payments  made  by  disbursing  officers  not 
later  than  September  24,  1913,  being  otherwise  correct,  would  be 
passed  to  their  official  credit. 

(Asst.  Comp.  W.  AV.  Warwick,  Sept.  19,  1913.) 


DECISIONS  OF  COURTS. 

(Digests  prepared  in  tlie  office  of  tlic  Judge  Advocate  General.) 

COURTS-MARTIAL:   Composition    of    court;    jurisdiction    over    officers    of 
the  Philippine  Scouts. 

An  officer  of  the  Philippine  Scouts  was  tried  by  a  general  court- 
martial  composed  of  officers  of  the  Regular  Army,  and  sentenced  to 
be  discharged  from  the  service  of  the  United  States  and  to  serve  a 
term  at  hard  labor. 

The  seventy-seventh  aiticle  of  war  provides — 

"  Officers  of  the  Regular  Army  shall  not  be  competent  to  sit  on 
courts-martial  to  try  the  officers  or  soldiers  of  other  forces,  except  as 
provided  in  article  seventy-eight." 

The  seventv-eighth  article  relates  to  officers  of  the  Marnie  Corps 
.servino-  on  courts-martial  with  officers  of  the  Regular  Army  when 


» 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       303 

detached  for  service  with  the  latter.  On  a  [)etition  for  writ  of  habeas 
corpus — 

field.  That  the  Philippine  Scouts  were  not  '"other  force.-*"  within 
the  meaning  of  the  seventy-seventh  article  of  war.  The  writ  was 
therefore  denied. 

{Athinson  v.  Steivart^  Supreme  Court.  Philippine  Islands.  Xov.  8, 
191-J.) 

NATIONAL  HOME  FOR  DISABLED  VOLUNTEER  SOLDIERS:   Jurisdic- 
tion over;  trustee  process. 

An  action  of  assumpsit  on  account  annexed  was  brought  in  a  State 
court  in  which  action  the  National  Home  for  Disabled  \'olunieer 
Soldiers  was  summoned  as  trustee.  The  principal  defendant  de- 
faulted. The  National  Home  had  entered  into  a  written  contract 
with  the  principal  defendant  for  the  construction  of  certain  improve- 
ments, and  evidence  was  introduced  tending  to  show  a  balance  due 
such  principal  defendant  in  the  hands  of  the  treasurer  of  the  Home 
at  the  time  of  the  service  of  the  writ  upon  the  alleged  trustee.  Tlie 
court  followed  the  rule  that  the  National  Home  could  not  bo  charged 
as  trustee,  for  the  reason  that  it  was  a  disbursing  agent  of  the  United 
States  Government.  On  appeal  from  plaintiffs  exceptions  to  that 
ruling,  held,  that— 

1.  The  principle  that  the  sovereign  can  not  be  sued  is  predicated 
upon  the  condition  that  it  has  not  consented  to  be  sued,  which  it 
may  do. 

2.  The  National  Home  for  Disabled  Volunteer  Soldiers,  estab- 
lished under  act  of  Congre.-^s  March  21,  1866  (11  Stat..'  10;  U.  S. 
Rev.  Stat.,  sec.  4825  et  seq.),  is  not  subject  to  trustee  process  in  an 
action  brought  in  a  State  court;  the  institution  not  being  properly 
regarded  as  having  its  place  of  business  "within  the  State"'  within 
the  trustee  process  statutes,  since  the  State  ceded  to  the  United  Stales 
jurisdiction  over  the  lands  on  which  the  home  is  situated. 

{Brooks  Hard  ware  Co.  v.  Greer^  Supreme  Judicial  Court  of 
Maine,  87  Atl.  Rep.,  889.) 


BULLETIN  35. 

Bulletin  1  AVAE  DEPARTMENT, 

No.  35.      J  WASHi:sGToy:,  Xocemher  7\  191S. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  October,  1913,  and  of  certain  decisions 
of  the  Comptroller  of  the  Treasury,  is  published  for  the  information 
of  the  service  in  general. 
[2094269,. A.  G.  O.] 
By  order  of  the  Secretary  of  War  : 

LEONARD  WOOD, 
Major  General^  Chief  of  Staff. 
Official  : 

GEO.  ANDREWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ARMY    ORGANIZATION:  Promotion    of    chaplain;    counting-    service    in 
the  Volunteer  Army. 

A  person  was  appointed  a  chaplain  in  the  Regular  Army  in  June, 
1908.  He  requested  that  his  service  as  chaplain  in  the  Volunteer 
Army  from  May  14,  1898,  to  February  22,  1899,  be  counted  as  service 
toward  the  period  of  seven  years  required  under  the  provisions  of  the 
act  of  April  21, 1904  (33  Stat.,  226) ,  for  his  promotion  to  the  grade  of 
captain.  Said  act,  after  making  provision  for  the  promotion  of  cer- 
tain chaplains  from  the  grade  of  captain  to  that  of  major,  provides — 

"  That  the  remaining  chaplains  shall  have  the  grade,  pay,  and  al- 
lowances of  captain,  mounted,  after  they  shall  have  completed  seven 
years  of  service:  And  provided  further^  That  all  persons  who  may 
hereafter  be  appointed  as  chaplains  shall  have  the  grade,  pay,  and 
allowances  of  first  lieutenant,  mounted,  until  they  shall  have  com- 
pleted seven  years  of  service." 

Ileld^  that  the  statute  requires  seven  years  of  service  as  chaplain 
in  the  Regular  Army  as  a  condition  precedent  to  advancement  to  the 
grade  of  captain,  and  that  the  officer  was  not  entitled  to  have  his 
volunteer  service  counted  in  computing  the  seven  years  of  serA'ice 
which  he  must  complete  prior  to  his  advancement  to  the  grade  of 
captain. 

(6-229.3,  J.  A.  G.,  Oct.  28,  1913.) 


CONTRACTORS:   Responsibility  for  losses   occurring  before   acceptance  of 
work;  provision  for  protecting  against  loss  by  fire  pending  acceptance. 

A  contract  for  the  construction  of  a  crematory  provided  that  the 
contractor  would  be  required  "  to  maintain  and  operate  the  crematory 

304 


DIGEST    OF    OPINIONS    OP    THE    JUDGE    ADVOCATE    GENERAL.        305 

Avithou.t  cost  to  tliQ  Government  for  a  period  of  one  month,  and  dem- 
onstrate its  ability  to  produce  the  required  results,"'  ar.d  further  that 
the  contractor  would  "be  held  responsible  for  all  damages  to  the 
buildings  whether  from  fire  or  otlier  causes  during  the  ])rosecution  of 
the  work  and  until  the  same  is  finally  accepted."  During  the  test  con- 
templated by  the  contract  and  before  acceptance  by  the  Government 
the  crematory  was  damaged  by  fiie  to  the  extent  of  $;^^00. 

Held,  that  as  the  plant  had  not  been  accepted  when  the  damage 
occurred,  the  responsibility  for  the  loss  should  be  placed  upon  the 
contractors. 

(79-GOO.  J.  A.  G.,  Oct.  16,  1013.) 


COUBTS-MAHTIAL:   Jurisdiction   of  summary   and   special   courts;  reduc- 
tion in  rank. 

The  act  of  March  2,  1913,  relating  to  courts-martial.  i)ro\ides  tiiat 
(37  Stat.,  722)  — 

"  Summary  courts-martial  shall  have  power  to  adjudge  punish- 
ment not  to  exceed  confinement  at  hard  labor  for  three  mon.ths  or 
forfeiture  of  three  months'  pay,  or  both,  and  in  additiqon  thereto  re- 
duction to  the  ranks  in  the  cases  of  noncommissioned  officers  and  re- 
duction in  classification  in  the  cases  of  first-class  privates,"  and  the 
same  limitation  as  to  reduction  in  rank  applies  to  special  courts- 
martial. 

Held,  that  a  cook,  not  being  a  noncommissioned  officer  nor  a  first- 
class  private,  could  not  be  reduced  by  sentence  of  a  summary  or  of  a 
special  court-martial. 

(30-734,  J.  A.  G.,  Oct.  1,  1913.) 


LINE  OF  DJTY:   Soldier  on  pass;  contributory  negligence. 

A  soldier  was  absent  from  his  post  on  pass.  Two  trains  left  the 
railroad  station  at  the  same  tim.e,  one  bound  for  his  post  and  the  other 
for  other  points.  About  the  time  for  the  trains  to  leave  and  before 
his  pass  had  expired,  the  soldier  was  seen  running  up  the  street  of  the 
town  toward  the  depot.  The  train  going  to  the  place  not  his  station 
was  just  pulling  out,  and  in  endeavoring  to  board  a  freight  car  on 
said  train  he  missed  his  hold,  fell  under  the  car,  and  receixed  injuries 
from  which  he  died  the  next  day. 

Held,  that  under  the  circum'stances  it  might  be  safely  assumed 
that  the  soldier  mistook  his  train  and  Avas  trying  to  board  the  train 
going  to  his  station  vdien  he  fell  and  was  injured.  Held  furfhi\ 
that  while  an  attempt  to  board  a  moving  train  is  attended  with  dan- 
ger, the  amount  of  danger  and  consequent  negligence  in  attempting 
to  board  it  varies  directlv  with  the  speed  of  the  train:  that  the  sol- 
dier in  attempting  to  board  the  starting  train  was  not  necessarily 
guilty  of  such  negligence  as  Avould  cause  him  to  be  considered  outside 
of  a  pension  status  f  and  that  his  death  might  be  considered  as  occur- 
ring in  line  of  duty  and  as  net  being  the  result  of  his  own  misconduct. 
,    (54-022,  J.  A.  G.,  Oct.  7,  1913.)  ■ 

93668°— 17 20 


306        DIGEST    OF    OPIXIOXS    OF    THE    JUDGE    ADVOCATE    GEXEPAL. 

PAY   OF  ENLISTED  IKF.IT:   Continuous  service;   counting-   service   en  May 
11.   1S08;  discharge  for  the  convenience  of  the  Government. 

A  soldier  enlisted  May  15.  1905.  and  ^as  honorably  disciiarsed 
May  o,  1907,  for  the  convenience  of  the  Government:  lie  reenlisted 
the  next  day  and  was  honorably  discharged  from  this  enlistment 
June  28,  1908,  by  purchase,  and  reenlisted  August  '20.  1908.  His 
descriptive  and  assignment  card  shows  the  following: 

"Last  discharge  Jurie  28,  1908,  *  *  *  continuous  service  at 
that  date  three  years,  one  month  and  three  days." 

On  this  record  he  was  taken  up  by  his  troop  commander  as  in  his 
second  enlistment  period  and  paid  accordingly. 

The  act  of  May  11.  1908.  provides  (35  Stat.,' 109)  — 

'•  But  any  soldier  who  receives  an  honorable  discharge  for  the 
convenience  of  the  Government  after  having  served  more  than  half 
of  his  enlistment  shall  be  considered  as  having  served  an  enlistment 
period  within  the  meaning  of  this  act :  that  the  present  enlistment 
period  of  men  now  in  service  shall  be  determined  by  the  number  of 
years  continuous  service  they  have  had  at  the  date  of  approval  of 
this  act  under  existing  laws,  counting  three  years  to  an  enlistment." 

Held,  that  the  soldier  on  May  11.  1908.  not  having  then  served  three 
years  continuouslv,  should  be  regarded  as  serving  in  his  first  enlist- 
ment  period  and  must  serve  out  his  last  enlistment  and  be  honorably 
discharged  therefrom,  or  be  honoral)ly  discharged  for  the  convenience 
of  the  Government  after  serving  more  than  one-half  thereof,  and 
have  reenlisted  again  within  three  months,  before  he  can  be  regarded 
as  having  entered  his  second  enlistment  period:  and  that  the  soldier 
was  erroneously  taken  up  in  his  second  enlistment  period  on  his 
reenlistment  August  20,  1908. 

(72-515.1,  J.  A.  G.,  Oct.  21,  1913.) 


POST    EXCHATTGES:  Leasing    of    portions    of    military    reservations    for' 
the  benefit  of. 

Portions  of  a  military  reservation  had  been  leased  upon  shares  to 
private  individuals,  the  rental  in  kind  to  be  turned  over  to  the  post 
exchange  of  the  post,  to  be  used  by  said  exchange  in  maintaining  a 
dairy  and  for  feeding  animals,  including  a  small  number  of  hogs.  It 
was  the  intention  to  increase  the  number  of  cows  so  that  the  dairy 
Avould  be  able  to  supply  organizations  and  individuals  with  dairy 
products,  and  also  to  increase  the  herd  of  hogs  so  as  to  supply  or- 
ganizations with  meat. 

Held,  that  while  it  has  been  the  practice  to  permit  military  organi- 
zations to  cultivate  limited  areas  of  reservations  to  supplement  the 
rations  furnished  by  the  Government  for  the  subsistence  of  enlisted 
men,  it  has  not  be^n  the  practice  to  lease  Government  lands  under 
agreements  providing  for  rental  in  kind  and  permitting  the  ap- 
propriation of  the  rentals  by  such  organizations :  and  that  the  facts  in 
this  case  disclosed  the  necessity  for  restricting  the  activities  of  post 
exchanges  in  business  enterprises  within  more  limited  boimds. 

(40-100,  J.  A.  G.,  Oct.  6.  1913.) 


DIGEST   OF    OPIXIOXS   OF    THE   JUDGE   ADVOCATE   GENERAL.        307 

PUBLIC  PROPERTY:  Personal;  loaning  of,  to  private  individuals. 

Upon  consideration  of  the  question  as  to  whether  or  not  the  Seere- 
tar}'  of  War  had  authorit}'  to  loan  articles  of  eijuipnient,  garrison 
equipage,  army  supplies,  etc.,  to  pri\ate  individual.s  or  to  State  or 
municipal  authorities,  on  occasions  of  public  ceremony,  parades,  etc., 
of  national  or  local  cliaiacter. 

Held,  that  under  authority  given  Congress  in  the  Constitution  of 
the  United  States  to  dispose  of  and  to  prescribe  regulations  respect- 
ing the  territory  or  other  property  belonging  to  the  United  States, 
Congress  had  made  elaborate  pro\ision  for  the  care  and  accounta- 
bility of  public  property,  and  that  it  would  be  conti-ary  to  the  pur- 
pose of  these  proAisions  to  loan  jjublic  pi-operty  to  private  individuals 
or  to  local  or  municipal  authorities,  thus  committing  the  custody  and 
care  of  such  property  to  others  than  those  authorized  bv  law.  '  Dig. 
Op.  J.  A.  (i.,  1912,  p.  908,  I.  I.  C. 

(80-140,  J.  A.  G.,  Oct.  1,  1913.) 


PUBLIC  PROPERTY:   License  to  take  water  from  Government  pipe  line. 

Application  was  made  by  the  owner  of  property  adjoining  that 
owned  by  the  United  States  in  Porto  Rico  to  tap  a  4-inch  Govern- 
ment water  main  supplying  Henry  Bai-racks,  for  the  purpose  of  ob- 
taining Avater  for  his  home. 

Held.,  that  the  request  may  not  Ije  granted. 

(80-81(5.8,  J.  A.  G.,  Oct.  14,  1913.) 


PURCHASES:   Of  material  of  American  manufacture;  fortification  act. 

The  fortification  act  of  February  13,  1913  (37  Stat.,  G74),  pro- 
vides— 

"That  all  material  purchased  under  the  provisions  of  this  act 
shall  be  of  American  manufacture,  except  in  cases  when  in  the  judg- 
ment of  the  Secretary  of  War  it  is  to  the  manifest  interest  of  the 
United  States  to  make  purchases  in  limited  quantities  abroad,  which 
material  shall  be  admitted  free  of  duty.'' 

Held.,  that  as  the  statute  did  not  define  the  meaning  of  the  term 
"limited  quantities.''  that  question  must  be  determined  in  a  par- 
ticular case  by  the  officer  in  charge  of  the  execution  of  the  law,  and 
that  no  definite  limit  could  be  fixed  upon  to  apply  in  all  cases. 

Held  further,  that  the  statute  lays  down  no  rule  for  determining 
the  question  of  whether  it  is  to  the  manifest  intei'cst  of  the  Ignited 
States  to  make  a  particular  purchase  from  abi'oad:  that  the  officer 
charged  with  the  execution  of  the  law  should  take  into  consideration 
all  the  circumstances,  including  the  item  of  cost,  in  determining  this 
question;  and  that  if  the  articles  of  domestic  manufacture  proposed 
to  be  furnished  do  not  meet  the  requirements  of  the  service,  or  if 
the  price  charged  therefor  should  be  unreasonable,  taking  into  con- 
sideration the  price  of  the  foreign  article  with  the  duty  added,  the 
l)nrchase  in  limited  (juantities  might  be  made  abroad. 

(7G-202,  J.  A.  G,,  Apr.  5  and  Oct.  13,  1913.) 


308       DIGEST   OF   OPINIONS   OP    THE    JUDGE   ADVOCATE   GENERAL. 

QUAETEKMASTEE  CORPS:   Employment  of  civilians  as  teamsters  to  take 
the  places  of  enlisted  men. 

It  was  proposed  to  employ  civilians  as  teamsters  temporarily  to 
take  the  places  of  enlisted  men  of  the  Quartermaster  Corps  detailed 
for  that  purpose  who  might  be  absent  in  desertion  or  without  leave 
or  undei'going  confinement  as  punishment. 

Section  4  of  the  act  of  August  24,  1012  (37  Stat.,  593),  provided 
that  not  to  exceed  4,000  civilian  employees  of  the  Quartermaster 
Corps  should  be  "  replaced  permanently  by  not  to  exceed  an  equal 
number  of  enlisted  men  of  said  corps,"  and  further  authorized  the 
enlistment  of  men  in  said  corps  for  the  purposes  of  the  act,  the  same 
to  be  assigned  to  such  duties  pertaining  to  said  Corps  as  the  Secre- 
tary of  War  might  prescribe.  The  law  excepted  from  its  operation 
certain  civilian  employees,  among  them  "  civil  service  employees  and 
employees  of  the  classified  service,"  and  as  to  the  further  employment 
of  civilians  provided — 

''  Nothing  in  this  section  shall  be  held  or  construed  to  prevent  the 
employment  of  the  class  of  civilian  employees  excepted  from  the  pro- 
visions of  this  act  or  the  continued  employment  of  civilians  included 
in  the  act  until  such  latter  employees  are  rephiced  by  enlisted  men 
of  the  Quartermaster  Corps." 

Held.,  that  civilian  teamsters  did  not  come  within  any  class  ex- 
cepted from  operation  of  the  law,  and  that  when  once  they  had  been 
replaced  by  enlisted  men  of  the  Quartermaster  Corps  it  was  not  com- 
petent to  again  employ  civilians  even  temporarily  to  take  the  places 
of  enlisted  men  who  had  replaced  the  civilians  first  em.ployed,  ex- 
cept perhaDS  under  emergent  conditions. 

(G-224.1,  J.  A.  G.,  Oct.  11  and  23,  1913.) 


RETIRED   OFFICERS:   Exercising   command   at  post  from  wMcli  regular 
garrison  has  been  removed. 

The  question  was  presented  as  to  whether  a  retired  officer  of  the 
Army  could  be  placed  on  duty  in  charge  of  a  post  left  temporarily 
without  its  usual  garrison  by  a  movement  of  the  troops.  In  a  post 
thus  left  temporarily  without  its  usual  garrison  there  will  ordinarily 
remain  a  surgeon,  either  of  the  Medical  Reserve  Corps  or  a  contract 
surgeon,  one  or  more  enlisted  men  of  the  Hospital  Corps,  a  num- 
ber of  enlisted  men  of  the  Quartermaster  Corps,  and  probably  some 
enlisted  men  of  the  line  of  the  Army. 

The  act  of  April  23,  1904  (33  Stat.,  264),  provides  that— 

'^The  Secretary  of  War  may  assign  retired  officers  of  the  Army, 
with  their  consent,  to  active  duty  in  recruiting  *  *  *  and  to 
staff  duties  not  involving  service  with  troops     *     *     *." 

Held,  that  as  a  retired  officer  placed  in  charge  of  a  post  under  the 
conditions  stated  must  exercise  command  over  enlisted  men  of  two 
or  niore  branches  of  the  service  and  also  over  any  officer  of  the  Medi- 
cal Corps  remaining  at  the  post,  the  proposed  assignment  would  in- 
volve the  exercise  of  command  and  also  service  with  troops,  and 
would  not  be  an  assignment  "to  staff  duty  not  involving  service  with 
troops;  "  and  that  the  proposed  assignment  vrould  not  be  authorized. 

Advised  further .^  that  there  was  no  other  statute  which  would  serve 
the  purpose  in  viev,-. 

(88-GOO,  J.  A.  G.,  Oct.  28,  1913.) 


DIGEST    OF    0PI2?I0XS    OP    THE    JUDGE    ADVOCATE    GENERAL.        309 

TAXATION:   Personal   property    of    retired    Arrny    officers    on    duty    at   an 
agricultural  college. 

A  retired  officer  of  tlio  Army  on  duty  at  an  afrrioultnral  collep;e 
represented  that  he  had  been  assessed  and  required  to  pay  taxes  on  his 
household  furniture,  money  in  bank,  and  everything  he  owned,  just 
'"as  every  other  citizen  of  the  town"  was  supposed  to  pay.  He 
alleged  that  he  was  not  a  citizen  of  the  State,  county,  or  city  and  had 
no  voice  in  the  management  of  their  affairs,  did  not  perform  any 
duties  except  as  ordered,  and  was  not  in  any  business. 

Recommended,  that  the  officer's  attention  be  directed  to  the  follow- 
ing extract  from  the  Digest  of  Opinions  of  the  Judge  Advocates 
General,  191-2,  page  1021,  B  and  D: 

"  But  though  a  retired  officer  can  not  legally  be  taxed  by  State 
or  nninicipal  autliorities  on  account  of  his  Army  pay  as  property  or 
income,  he  is  subject  to  be  taxed  for  other  property  owned  by  him 
like  any  other  citizen     *     *     *. 

"An  offixer  or  soldier  of  the  Army,  though  not  taxable  officially, 
may  be  and  often  is  taxable  personally.  He  is  not  taxable  by  a  State 
for  his  pay,  or  for  the  arms,  instruments,  uniform  clothing,  or  other 
property  pertaining  to  his  military  office  or  capacity,  but  as  to  house- 
hold furniture  and  other  personal  property',  not  military,  he  is  (ex- 
cept where  stationed  at  a  place  under  tlie  exclusive  jurisdicticm  of 
the  United  States)  equally  subject  with  other  residents  or  inhabit- 
ants to  taxation  under  the  local  law." 

(90-152.2,  J.  A.  G.,  Oct.  14,  1913.) 


TRANSPORT ATION:   Change    of    station    allowance    of    baggage;    civilian 
employee  of  the  Engineer  Departiixeiifc;  appropriation. 

A  draftsman  in  the  employ  of  the  Engineer  Department  at  Large 
])ermanently  changed  his  station  under  orders  dated  May.  1909,  on 
account  of  improvement  of  St.  Johns  River,  Fla.  Afterwards,  at  his 
own  expense,  he  crated  and  on  August  23.  1913.  shipped  from  his  old 
to  his  new  station  his  personal  baggage  or  efl'ects  w'ithin  the  amount 
allowed  by  paragi'aph  1151,  Arm}  Regulations,  1910.  for  shipment 
for  a  civilian  employee  on  change  of  station.  He  made  no  applica- 
tion either  to  the  Quartermaster  Corps  or  to  any  officer  of  the  Engi- 
neer Corps  for  such  packing  and  transportation.  Paragraph  1150 
of  the  Army  Regulations  provides  that  on  change  of  station  the 
authorized  allowance  of  baggage  will  be  turned  over  to  the  Quarter- 
master's Department  to  be  packed  and  crated  for  transportation  as 
freight  by  ordinary  freight  lines. 

Held,  that  the  regidations  contemplate  that  the  Quartermaster 
Corps  shall  render  the  service  of  packing,  crating,  and  shippmg  the 
change  of  station  allowance  of  baggage;  that  the  employee  should 
have  applied  for  such  services  to  the  district  engineer:  and  that  not 
having  done  so,  he  could  not  be  reimbursed  in  money  for  the  ex]KMise 
incurred  by  him.     3  Comp.  Dec,  304;  G  Id..  84  and  317;  15  Id..  731 ; 

18  Id.,  415.  ,         ,       ,. 

Held  further,  that  the  regulations  contemplate  the  sliii)ment  at  or 
about  the  time  of  transfer  of  station  and  not  a  continuing  ob]igatu)n, 
and  that  the  delay  of  over  four  years  would,  unless  special  conditions 
existed,  be  sufficient  to  defeat  the  claim. 


310        DIGEST    OF   OPIXIOXS   OF    THE    JUDGE   ADVOCATE    GENERAL, 

Held  further,  that  the  expense  of  such  shipment,  if  aOovvable, 
should  be  borne  by  the  appropriation  fpr  the  improvement  of  St. 
Johns  River.  Fhi. 

(lG-400,  J.  A.  G.,  Oct.  15,  1913.) 


TRAVEL  ALLOWANCES:   Of  enlisted  men  on  discliarge;   transportation 
of  effects  to  their  homes. 

Certain  soldiers  of  the  Army  were  discharged  while  they  were 
temporarily  absent  on  duty  from  their  permanent  stations,  and  it 
was  proposed  to  transport  their  personal  effects  left  at  their  perma- 
nent stations  to  points  in  the  United  States  where  they  were  to  go, 
or  to  their  homes. 

Held,  that  the  act  of  August  24,  1012  (37  Stat,  576),  in  granting 
certain  travel  allowances  on  discharge  to  enlisted  men,  which  included 
the  transportation  of  the  usual  amount  of  travel  baggage  to  accom- 
pany the  soldier,  by  implication,  forbade  the  furnishing  of  anything 
in  addition  thereto,  and  that  the  transportation  of  the  soldier's  effects 
from  their  permanent  stations  to  different  ])oints  in  the  United 
States  under  the  conditions  stated  was  not  authorized 

(91-242,  J.  A.  a,  Oct.  7  and  20.  1913.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 
COMMUTATION  OF  QUARTERS:   Officer  on  leave  and  relieved  from  duty. 

An  officer  of  the  Army  while  on  duty  with  the  Quartermaster 
Corps  at  a  station  where  he  was  entitled  to  and  received  commutation 
of  quarters,  obtained  a  leave  of  absence  for  one  month  to  take  effect 
at  a  future  date.  Before  availing  himself  of  the  leave  he  was  relieved 
from  duty  with  the  Quartermaster  Corps  and  directed  to  retain  his 
station  at  said  place  until  further  orders.  After  entering  upon  his 
leave  and  before  its  expiration  he  was  assigned  to  a  regiment  of  Cav- 
alry and  directed  on  the  expiration  of  his  leave  to  proceed  to  join  his 
organization.  At  the  expiration  of  his  leave  he  returned  to  his  for- 
mer station  and  on  the  next  day  proceeded  to  join  his  new  station. 

Ileld^  that  having  been  relieved  from  duty  at  his  station,  he  was  not 
entitled  to  commutation  of  quarters  during  the  period  of  his  absence 
on  leave,  his  case  coming  within  the  second  clause  of  paragraph  1321, 
Army  Regulations,  1910.  See  also  decision  of  June  18,  1913  (W.  D. 
Bui. 'No.  29,  p.  19). 

(Comp.  Geo.  E.  Downey,  Oct.  13,  1913.) 


COMMUTATION   OF   QUARTERS:   Detail   for   service   with   the   Philippine 
Constabulary. 

An  officer  of  the  Army  was  paid  commutation  of  quarters  during 
the  period  he  was  on  duty  with  the  Philippine  Constabulaiy,  under 
detail  in  pursuance  of  the  act  of  January  30,  1903  (32  Stat.,  783), 
Avhich  provides — 

"  That  officers  of  the  Army  of  the  TTnited  States  may  be  detailed  for 
service  as  chief  and  assistant  chiefs,  the  said  assistant  chiefs  not  to 


DIGEST    OF    OPIXIOXS    OF    THE   JUDGE   ADVOCATE    GEXEEAL.       311 

exceed  four  in  number,  of  the  Philippine  Constubulaiy,  and  that  dur- 
ing the  continuance  of  such  details  the  officer  serving  as  chief  shall 
have  the  rank,  pay,  and  allowances  of  brigadier  general,  and  the 
officers  serving  as  assistant  chiefs  shall  ha^  e  the  rank,  i)ay,  and  allow- 
ances of  colonel."' 

The  Army  appropriation  act  of  August  24,  1912  (o7  Stat.,  575), 
provides— 

"  for  commutation  of  quarters  to  commissioned  officers  *  *  *  on 
duty  without  troops  and  stationed  where  there  are  no  public  quar- 
ters    *     *     *." 

Ileld^  that  as  officers  of  the  Army  detailed  under  said  act  of  Janu- 
ary 30,  11)03,  for  duty  with  the  Philippine  Constabulary  do  not  per- 
form military  service  in  the  line  of  their  duty  as  Army  officers  but  are 
performing  civil  duty,  they  should  be  treated  as  officers  on  leave  of 
absence  (10  Comp.  Dec,  839;  Dig.  Op.  J.  A.  G.,  1912.  p.  103)  ;  and 
that  the  officer  was  not  entitled  to  the  connnutation  of  quarters  paid 
him. 

(Comp.  Geo.  E.  Downey,  Oct.  22,  1913.) 


ENLISTED  MEN"  OF  THE  ARMY:   Deduction  from  pay  for  absence  from 
duty  on  the  31st  day  of  the  month. 

A  private  soldier  was  in  hospital  from  October  29  to  November  8, 
both  dates  inclusive,  during  which  time  he  was  not  entitled  to  pay  by 
virtue  of  the  proviso  in  the  act  of  August  24,  1912  (37  8tat.._572),  to 
the  effect  that  no  officer  or  enlisted  man  in  the  active  service  shall 
receive  pay  for  a  period  of  absence  from  actual  duty  on  account  of 
disease  resulting  from  his  own  intemperate  use  of  drugs  or  alcoholic 
liquors  or  other  misconduct.  Section  6  of  the  act  of  June  30.  1906 
(31  Stat.,  763),  after  providing  that  persons  employed  in  the  service 
of  the  United  States  on  an  annual  or  monthly  compensation  can  not 
be  paid  for  the  31st  day  of  the  month,  adds  the  proviso — 

"  That  for  one  day's  unauthorized  absence  on  the  31st  day  of  any 
calendar  month  one  day's  pay  shall  be  forfeited." 

Held^  that  pay  should  be  deducted  for  11  days,  including  the  31st 
dav  of  the  month. 

(Comp.  Geo.  E.  Downey,  Oct.  3,  1913.) 


ENLISTED  MEN  OF   THE  ARMY:   Use  of  deposit  made  by   soldier  with 
Army  paymaster. 

Section  1305.  Revised  Statutes  as  amended,  permits  an  enlisted 
man  to  make  deposits  of  his  pay  with  an  Army  paymaster,  and  pro- 
vides that  such  deposits  shall  not  be  subject  to  forfeiture  by  a  sen- 
tence of  court-martial,  but  shall  be  forfeited  by  desertion,  and  shall 
be  exempt  from  liability  for  the  soldier's  debts. 

The  fifty-fourth  article  of  war  provides  that— 

"Every "officer  commanding  in  quarters,  garrison,  or  on  the  march 
*  '^-  *  *  if,  upon  complaint  made  to  him  of  officers  or  soldiers  beat- 
ing or  otherwise  ill-treating  any  person,  disturbing  fairs  or  markets, 
or  committing  anv  kind  of  riot,  to  the  disquieting  of  the  citizens  of 
the  United  States,  he  refuses  or  omits  to  see  justice  done  to  the 


312        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

offender  and  reparation  made  to  the  party  injured,  so  far  as  part  of 
the  offender's  pay  shall  go  toward  such  reparation,  he  shall  be  dis- 
missed from  the  service  or  otherwise  punished  as  a  court-martial  may 
direct." 

A  private  soldier  was  dishonorably  discharged,  with  forfeiture 
of  all  pay  and  allowances,  having  $5  deposited  with  a  paymaster  of 
the  Quartermaster  Corps.  His  final  statements  showed  indebtedness 
to  the  United  States  less  than  the  amount  of  said  deposit,  and  also  a 
charge  for  individual  reimbursement,  under  the  fifty-fourth  article 
of  war,  amounting  to  $73. 

Held.,  that  the  Government  assumes  no  liability  for  abuses  com- 
mitted in  the  manner  pointed  out  in  the  fifty-fourth  article  of  w  ar, 
and  that  the  balance  of  the  deposit  remaining,  after  satisfying  the 
debts  clue  the  United  States,  should  be  paid  to  the  discharged  soldier. 

(Cornp.  Geo.  E.  Downey,  Oct.  30,  1013.). 


PBIVATE  PEOPEHTY:   Construction  of  the  act  of  March  3,   1885;  loss  of 
private  horse  in  the  military  service. 

The  act  of  March  3,  1885  (23  Stat.,  350),  authorizes  the  proper 
accounting  officer  of  the  Treasury,  for  the  purpose  of  reimburse- 
ment, to  examine  into,  ascertain,  and  determine  the  value  of  certain 
private  property  belonging  to  officers  and  enlisted  men  of  the  Army 
and  which  ma}^  be  lost  or  destroyed  in  the  military  service  under  the 
following  conditions: 

''  First.  When  such  loss  or  destruction  vras  without  fault  or  negli- 
gence on  the  part  of  \\iQ  cla.imant. 

"  Second.  Where  the  private  property  so  lost  or  destroyed  was 
shipped  on  board  an  unseaworthy  Aessel  by  order  of  any  officer  au- 
thorized to  give  such  order  or  direct  such  shipment;  and 

"  Third.  Where  it  appears  that  the  loss  or  destruction  of  the 
private  property  of  the  claimant  was  in  consequence  of  his  having 
given  his  attention  to  the  saving  of  property  belonging  to  tlie  United 
States  which  was  in  danger  at  the  same  time  and  under  similar  cir- 
cumstances    *     *     *." 

The  Auditor  for  the  "War  Department  submitted  a  proposed 
change  of  construction  of  said  act,  as  follows : 

"  I  am  of  opinion,  and  so  decide,  that  the  existing  construction 
of  said  act  should  be  so  modified  as  to  authorize  reimbursement  only 
in  the  cases  where  tlie  loss  fails  within  the  'second'  and  'third' 
clauses  of  said  act.  without  fault  or  negligence  on  the  part  of  the 
claimant." 

The  Comptroller  disapproved  the  proposed  change  of  construc- 
tion, but  announced  himself  in  accord  with  the  first  seven  of  the  con- 
clusions stated  in  3  Comp.  Dec.  638,  setting  forth  the  conditions  which 
entitle  a  person  to  recover  for  the  value  of  property  lost  or  destroyed 
as  in  said  act  specified,  and  expressed  his  dissent  from  the  following 
statement  in  the  19  Comp.  Dec,  534: 

''  The  law — the  act  of  1885.  supra — does  not  require  that  the  prop- 
erty, for  which  reimbursement  is  to  be  given  the  officer  or  soldier 
when  lost  or  destroyed,  shall  have  been  lost  due  to  any  exigency  of 
-the  service  or  any  incident  peculiar  to  the  military  service.  All  the 
law  now  requires  is  that  it  be  losl  or  destroyed  while  in  the  military 


DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE    GENERAL.       313 

service  and  owned  by  an  officer  or  enlisted  man  in  the  service,  and 
that  sue})  loss  is  without  fault  or  negligence  on  the  part  of  the  claim- 
ant." 

The  Comptroller  further  referred  with  approval  to  the  decision  of 
the  Assistant  Comptroller  of  the  Treasury  in  18  Comp.  Dec,  47,  hold- 
ing that  the  class  of  private  property  to  which  said  act  of  March  3, 
18(S5,  relates,  does  not  include  horses  belonging  to  officers  and  en- 
listed men  in  the  military  service,  and  that  the  accounting  officers 
of  the  Treasury  were  without  jurisdiction  to  receive  and  audit  the 
claim  of  an  officer  or  enlisted  man  for  the  loss  of  a  horse  in  said  serv- 
ice, thus  overruling  the  decision  in  19  Comp.  Dec,  532,  which  had 
overruled  the  decision  of  the  Assistant  Comptroller. 

(Comp.  Geo.  E.  Downey,  Oct.  20,  1913.) 


TELEPHONE    SERVICE:   Installation    of,    in    private    quarters;    common 
use  of  trunk  line. 

Three  telephone  trunk  lines  connected  betvreen  the  exchange  of  a 
nav}'^  yard  and  the  city  and  service  outside,  and  were  used  in  common 
by  public  official  telephones  and  telephones  installed  in  the  private 
quarters  of  officers  at  the  yard.  The  telephone  company  made  a  sepa- 
rate charge  for  the  use  of  telephones  in  the  private  quarters  of  offi- 
cers, and  the  question  was  presented  as  to  the  manner  of  adjusting 
the  payment  of  bills  for  the  use  of  the  trunk  line. 

Held.,  that  the  quarters  of  an  officer  at  the  navy  yard  must  be  re- 
garded as  a  private  residence  within  the  meaning  of  section  7  of  the 
act  of  August  23,  1912  (37  Stat.,  414),  prohibiting  payment  for  tele- 
phone sei-A'ice  installed  in  any  private  residence  or  private  apart- 
ment ;  and  that  the  paymaster  was  not  authorized  to  pay  the  entire 
amount  of  the  bill  for  the  use  of  the  trunk  lines  from  Government 
funds  and  then  to  reimburse  said  funds  from  juoney  afterwards  col- 
lected from  officers  in  whose  quarters  the  telephones  were  installed, 
but  that  the  charge  for  the  rental  of  the  trunk  lines  used  in  common 
should  be  apportioned  between  the  officers  having  telephones  in  their 
quarters  and  the  Government  according  to  the  number  of  telephones 
used  by  each,  respectivelv. 

(Comp.  Geo.  E.  Downey,  Oct.  6,  1913.) 


TKAOTSPORTATIOIT :    Excess    baggage    on    cliange    of    station;     mileage 
status. 

A  disbursing  quartermaster  of  the  Army  submitted  for  advance 
decision  tlie  question  of  the  legality  of  payment  for  transportation  of 
200  pounds  of  excess  baggage  belonging  to  an  officer  changing  sta- 
tion and  ti-ansported  on  the  same  train.  The  transportation  was  fur- 
nished in  .Tidy,  1913.  It  was  assumed  that  the  officer  was  entitled  to 
and  had  received  mileage  for  his  travel.  In  a  decision'  of  the  Comp- 
troller's office  of  September  19,  1913,  it  was  held  that  there  was  no 
authority  of  law  for  the  transportation  at  public  expense  of  the  per- 
sonal baggage  accompanying  an  officer  on  a  journey  for  which  he 
receives  mileage,  regardless  of  whether  the  journey  was  on  temporary 
duty,  temporary  change  of  station,  or  permanent  change  of  station; 


314       DIGEST    OF    OPTlNlOXS    OF    THE    JUDGE   ADVOCATE   GEXERAL. 

hxit  that  as  the  practice  of  paying  for  the  transportati(sn  of  excess 
baggage  had  been  long  continued,  payments  for  such  transportation 
by^disbursing  officers  made  not  hxter  than  the  -lith  of  September, 
1913,  if  otherwise  correct,  would  be  passed  to  their  official  credit. 

Held,  that  as  no  payment  had  been  made,  the  case  fell  within  the 
decision  of  September  10,  1913,  and  there  vjis  no  authority  for 
making  the  payment. 

(C'omp  Geo.  E.  Downey,  Oct.  1,  1913;  see  also  decision  of  Oct.  18, 
1913.) 


BULLETIN  38. 

Bulletin!  AVAR  DEPARTMENT, 

No.  88.    J  V^A^iiimiios^  December  19, 101  J. 

The  following-  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  November,  1913,  incliiding  some  o'pin- 
ions  for  tlie  month  of  October,  li)l;>,  not  heretofore  publihlied:  of  cer- 
tain decisions  of  the  Comptroller  of  the  Treasury  ;  and  of  one  decision 
of  a  court,  is  pul^lislied  f<»r  the  information  of  the  service  in  general. 
(20942G0  A— A.  G.  O.) 

By  OKDICIt  OF  THE  SECRETARY  OF  WaR  : 

LEONARD  WOOD, 
Major  General,  Chief  of  Staff. 
OrnciAL : 

GEO.  ANDREWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

APPKOPRIATIONS:   liUmp-sum;     promotion     of    employees    paid    from; 
meclianics  and  artisans;  change  of  duties. 

It  was  proposed  to  increase  the  compensation  of  a  packer  at 
Omaha,  Nebr..  paid  from  a  lum])-snm  appropriation,  above  the 
amount  which  he  had  been  receiving  during  the  jireceding  fiscal  year 
for  the  same  service,  as  coming  within  the  exception  to  section  4  of 
the  act  of  March  4,  1913  (37  Stat.,  790),  reading  as  follows: 

"This  section  shajl  not  apply  to  mechanics,  artisans,  their  helpers 
and  assistants,  laborers,  or  any  other  employees  whose  duties  are  of 
similar  character  and  required  in  carrying  on  the  various  manufac- 
turing or  constructing  operations  of  the  Government." 

TleJd^  that  the  packer  could  not  be  classed  as  a  mechanic  or  as  an 
artisan,  and  did  not  come  within  the  class  of  employees  excepted 
from  the  act,  and  that  he  was,  therefore,  subject  to  the  general 
restrictions  of  the  law. 

It  was  also  proposed  to  promote  two  clerks  who  had  had  additional 
duties  imposed  upon  them  since  the  begiiuiing  of  the  fiscal  year, 
and  who  had  been  paid  and  were  to  be  paid  from  lump-sum  ajipro- 
priations. 

Ileld^  that  in  order  that  the  additional  comjiensation  nuglit  l)e  paid 
the  additional  duties  should  be  of  a  diffeient  character  fi'oui  th.ose 
performed  by  them  during  the  preceding  fiscal  year,  but  that  the 
question  of  whether  these  duties  were  of  such  different  character,  or 
Avere  of  sufficient  importance  in  a  given  case  to  justify  the  increase 
in  compensation,  was  one  of  administration  having  in  view  the 
importance  of  the  work  and  its  permanency. 

(5-075,  J.  A.  G.,  Nov.  7,  1913;  see  also  decision  of  Nov.  24.  1913.) 


COMMUTATION  OF  QUARTERS:    Officers  assigned  to  station  away  from 
a  hospital  where  they  were  to  perform  duty;   service  witli  troops. 

Certain  medical  officers  attached  for  duty  to  the  Departnierit  Hos- 
pital were  directed  to  take  station  at  Honolulu,  H.  T.,  where  they 

315 


816       DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE   GENERAL. 

had  no  duties  to  perform,  and  not  at  the  hospital  where  their  duties 
were  located. 

Ilelcl^  that  to  entitle  an  officer  to  commutation  of  quarters  it  must 
appear  that  he  was  properly  on  duty  without  troops  at  a  station 
where-  there  were  no  public  quarters  available  for  his  occupancy, 
that  service  at  hospitals  is  not  regarded  as  service  w-ithout  troops,  and 
that  as  the  officers  had  no  duty  to  perform  in  Honolulu,  they  were 
not  entitled  to  commutation  of  quarters.  Held  further^  that  the  act 
of  March  2,  1901  (31  Stat.,  901).  authorizing  the  Secretary  of  War 
to  determine  what  shall  constitute  duty  without  troops  within  the 
meaning  of  the  law  relating  to  the  payment  of  commutation  of 
quarters,  did  not  authorize  him  to  declare  as  service  without  troops 
that  which  clearly  is  not  of  such  character,  but  only  vested  him  with 
the  function  of  determining  the  deg]-ee  of  mxilitary  control  or  disci- 
pline which  might  be  exercised  as  between  officers  or  \i\  officers  over 
enlisted  men,  to  constitute  such  service. 

(72-330,  J.  A.  G.,  Nov.  8,  1913.) 


CONTHACT  SURGEONS:    Cost  cf  subsisting  v/hile  messing  on  vessel  was 
temporarily  suspended. 

A  contract  surgeon  of  the  Army  had  been  subsisted  at  public 
expense  in  the  saloon  mess  of  an  Army  transport  on  which  he  was 
performing  duty,  and  desired  an  increase  of  $1  per  day  in  compen- 
sation as  reimbursement  for  subsistence  during  a  short  period  while 
messing  on  the  vessel  had  been  suspended,  during  which  time  he 
subsisted  himself.  Said  amount  was  the  price  charged  to  officers 
paying  for  their  own  subsistence  in  the  saloon  mess. 

Contract  Surgeons  are  employed  under  authority  of  paragraph 
1413,  Army  Regulations,  1910,  which  provides: 

"  Civilian  physicians  *  *  *  may  be  employed  as  contract  sur- 
geons *  *  *  under  contracts  entered  into  b}^  or  with  the  author- 
ity of  the  Surgeon  General  of  the  Army.  They  are  entitled  to  the 
transportation  and  fuel  allowances  of  first  lieutenants,  and  when  on 
duty  at  a  post  or  station  where  quarters  in  kind  are  provided  by  the 
United  States  they  will  be  entitled  to  the  quarters  allovred  by  regu- 
lation    *     *     *." 

The  contract  in  this  case  followed  the  regulation. 

Held,  that  the  pu.rport  of  the  regulation  and  contract  was  to  place 
a  contract  surgeon  in  the  position  of  a  commissioned  officer  as  to  his 
compensation,  except  as  limited  by  the  statute,  and  as  a  commis- 
sioned officer  in  a  similar  situation  w^ould  not  have  been  entitled  to 
any  allowance  for  his  subsistence,  there  was  no  authority  for  allow- 
ing it  to  a  contract  surgeon. 

(6-227.5,  J.  A.  G.,  Nov.  25,  1913.) 


CONTSACTORS:    For  material  to  be  used  on  public  works;   treatment  of 
employees. 

Complaint  was  made  that  the  Government  was  employing  a  con- 
tractor for  the  manufacture  of  material  to  be  used  at  a  lock  and  dam, 
Avhich  mistreated  the.  men  working  for  it  "  contrary  to  all  rules  of 
justice  and  right." 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE    GENERAL.       317 

IleM,  thiit  neither  the  hiw  nor  the  contract  for  the  construction  of 
the  lock  and  dam  authorized  the  Department  to  interfere  with  the 
control  by  the  contractor  of  its  plant,  and  as  the  law  stood  the 
Department  could  not  insert  in  any  contract  for  future  work  a  pi'o- 
vision  which  would  purport  to  give  the  Government  control  of  such 
matters,  since  the  effect  would  be  to  resti'ict  competition  and  lead  to 
higher  prices,  contrary  to  the  intent  of  the  law  which  requires  con- 
tracts to  be  let  to  the  lowest  bidder  and  under  conditions  which  will 
insure  reasonable  prices. 

(76-710,  J.  A.  G.,  Nov.  24,  1913.) 


CONTRACTS:   Excuses  for  delays  in  performance;  purchase  against  con- 
tractor; flood  conditions, 

A  contract  for  delivery  of  fresh  beef  at  Columbus  Barracks,  Ohio, 
gave  the  Government  the  right  in  case  of  failure  of  the  contractors 
to  make  deliveries  as  required  by  their  contracts — 
''  to  supply  by  purchase  in  open  market  or  otherwise  any  deficiency 
resulting  from  such  failure." 

The  contractors  having  failed  to  deliver  beef  in  accordance  with 
their  contract,  there  was  purchased  in  open  market  a  certain  quan- 
tity of  fresh  beef,  and  the  difference  between  the  purchase  price  and 
the  contract  price  was  deducted  from  the  amount  due  the  contractors. 
The  latter  raised  the  question  as  to  whether  the  deduction  w^as  proper 
in  view  of  the  fact  that  the  failure  to  deliver  was  the  result  of  delayed 
trains  due  to  flood  conditions  which  prevailed  at  the  time. 

Ileld^  that  as  the  contract  contained  no  provision  excepting  failure 
in  delivery  caused  by  delays  in  transit  on  the  part  of  transportation 
companies,  there  was  no  authority  for  granting  the  relief  requested. 

(7G-600,  J.  A.  G.,  No\^  10,  1913.) 


CONTRACTS:   Cancellation  for  failure   to   comply   with  terms   of;   riglits 
of  the  United  States. 

A  contract  was  entered  into  with  a  firm  for  supplying  fresh  meat 
at  an  Army  post.  The  prices  did  not  allow  much  margin  for  profit, 
and  difficulty  was  experienced  in  enforcing  compliance  with  the 
specifications  relative  to  weights  and  condition  of  meat  delivered. 
Frequent  rejections  resulted  for  failure  to  supply  meat  according  to 
specifications,  and  frequent  purchases  were  made  against  the  con- 
tractor for  failure  to  supply  meat  under  the  contract.  It  was,  there- 
fore, recommended  that  the  contract  be  annulled,  and  that  pro])osals 
be  issued  for  a  new  contract,  the  firm  in  question  not  to  be  awarded 
contracts  in  the  future.  It  was  conceded  that  the  price  under  the 
contract  was  less  than  that  which  could  probably  be  obtained  by 
reletting  the  contract,  and  that  aside  from  the  trouble  of  enfoi-cing 
compliance  with  the  existing  contract,  the  action  proposed  would  not 
be  for  the  best  interests  of  the  Government. 

Held,  that  the  contract  could  not  legally  be  annulled;  that  the  con- 
tractors should  be  held  to  a  compliance  with  its  terms ;  and  that  upon 
failure  to  do  so,  the  usual  remedies  reserved  by  the  contract  should 
be  invoked  against  them.    9  Op.  Atty.  Gen.  81. 

(76-731,  JT  A.  G.,  Nov.  17,  1913.) 


318        DIGEST    OF    OPIXIOXS    OF    THE    JUDGE    ADVOCATE    GEXEKAL, 

COUHTS-MARTIAL:    Constitution    of;   member   as    witness   for   the  prose- 
cution. 

The  act  of  March  2. 1013  (37  Stat.,  7-2-2 :  W.  D.  BulL  Xo.  T.  Mar.  i;>, 
1913,  p.  30),  provides  that — 

ti.  *  *  *  ^j^g  commanding  officer  of  a  territorial  *  *  *  de- 
partment. *  *  *  may  appoint  general  courts-martial  whenever 
necessarv:  but     *     *     *     no  officer  shall  be  eligible  to  sit  as  a  mem- 

■1/7  ^ 

ber  of  such  court  when  he  is  the  accuser,  or  a  witness  for  the  prose- 
cution." 

A  private  soldier  who  was  brought  before  a  general  court-martial 
for  trial,  challenged  a  member  of  the  detail  for  the  court  on  the 
ground  that  he  was  a  witness  in  the  case,  had  had  to  do  with  the 
preferring  of  the  charges,  and  had  taken  part  in  investigating  the 
case.  The  officer  challenged  replied  that  he  had  taken  no  part  in  the 
investigation  of  the  case,  had  formed  no  opinion  as  to  the  guilt  or 
innocence  of  the  accused,  and  believed  that  he  could  give  a  true  ver- 
dict in  tlie  case.  The  challenge  was  not  sustained  by  the  court,  and 
the  officer  was  sworn  as  one  of  six  members  of  the  court  for  the  trial 
of  the  case.  Subsequently  the  officer  was  called  as  a  Avitness  for  tlie 
prosecution,  was  sworn,  and  gave  testimony.  It  did  not  appear  that 
he  was  excused  from  further  duty  as  a  memljer  of  the  court  upon  be- 
ing called  as  a  witness  for  the  prosecution. 

t  In  another  case  a  soldier  was  brought  before  a  general  court-mar- 
tial for  trial  upon  four  charges,  to  three  of  which  he  pleaded  guilty, 
but  to  one,  a  charge  of  desertion,  h.e  pleaded  not  guilty  but  guilty  of 
absence  without  leave.  In  the  course  of  the  trial  a  member  of  the 
detail  for  the  court  who  had  been  sworn  as  a  member  of  the  court, 
was  called  as  a  witness  for  the  prosecution,  was  sworn,  and  gave  testi- 
mony. It  did  not  appear  that  he  was  excused  from  further  duty  as 
a  member  of  the  court  upon  being  called  as  a  witness  for  the  prose- 
cution. 

Held,  that  a  court  composed  either  wholly  or  partly  of  officers 
statutorily  ineligible  to  sit  as  members  thereof,  is  not  a  lawful  court ; 
and  that  when  a  member  who  has  become  statutorily  ineligiWe  par- 
ticipates thereafter  in  the  trial,  the  court  thereui>on  ceases  to  be  a 
lawful  one,  and  is  therefore  incompetent  to  proceed  with  the  trial, 
to  arrive  at  a  findinff,  or  to  adjudge  a  sentence. 

(30-435,  J.  A.  G.^Oct.  11  and  Xov.  13,  1913.) 


COURTS-MARTIAL:  Jurisdiction  of  special  courts-martial;  capital  oSfenoes. 

A  private  soldier  pleaded  guilty  before  a  special  court-martial 
to  the  charge  of  sleeping  on  post,  in  violation  of  the  Thirty-ninth 
Article  of  War,  and  was  sentenced  to  be  confined  at  hard  labor  for 
three  months  and  to  forfeit  the  sum  of  $10  per  month  for  the  game 
period.    The  Thirty-ninth  Article  of  War  provides  that — 

''Any  sentinel  who  is  found  sleeping  upon  his  post,  *  *  *  shall 
suffer  death,  or  such  other  punishment  as  a  court-martial  may  direct." 

The  act  of  March  2,  1913,  establishing  special  courts-martial,  pro- 
vides (37  Stat.,  722)  that— 

''Special  courts-martial  shall  have  power  to  try  any  person  sub- 
ject to  military  law,  except  an  offi.cer,  for  any  crime  or  oU'ense  not 
capital  made  punishable  by  the  Articles  of  War." 


DIGEST   OF   OPIXIOXS   OF    THE    JUDGE   ADVOCATE   GENERAL,       319 

Held.,  tliiit  the  offense  cluir<i;ed  in  said  case,  l^eing  a  capital  one, 
was  beyond  the  jurisdiction  of  a  special  conrt-niaitial.  an<[  that  the 
proceedings,  findings,  and  sentence  were  illegal  and  \()id.  Adrhed^ 
therefore,  that  the  soldier  be  released  from  confinement  under  the 
sentence,  and  that  proper  entries  be  made  upon  muster  and  pay  rolls 
and  other  records  to  indicate  that  the  sentence  was  illegal  and  \()id. 

(30-750,  J.  A.  G.,  Oct.  13,  1913.) 


DETACHED    SERVICE:   Assignment    to    duty    on    transports,    of    officers 
traveling  thereon  who  are  not  eligible  for  detached  service  in  general. 

Upon  inquiry  as  to  whether  officers  traveling  on  tran^poi'ts  in 
compliance  with  orders  to  join  theii-  companies  from  detached  service 
or  in  compliance  with  orders  to  change  station  from  one  company 
assignment  to  another,  but  who  are  ineligible  for  detached  s-ervice 
in  general  by  reason  of  the  detached-service  legislation  of  August 
i:!4,  1912  (37  Stat.,  571),  may  be  assigned  to  duty  on  board  said 
transports. 

Ileld^  that  the  assignment  of  duties  to  be  performed  during  the 
regular  course  of  his  journey  by  an  officer  en  route  from  detached 
senice  to  a  company  assignment  or  en  route  from  one  company  as- 
signment to  another,  can  not  be  regarded  as  in  violation  of  the 
detached-service  legislation  of  August  24,  1912,  if  the  due  prosecu- 
tion of  the  journey  be  not  interfered  with :  that  is,  the  detached- 
service  legislation  does  not  prevent  the  proper  superior  from  requir- 
ing of  an  officer  thus  engaged  any  duty  which  will  not  serve  to 
divert  him  from  his  proper  route  in  complying  with  his  orders  to 
change  station  or  to  delay  him  in  reporting  for  dut}^  in  person  under 
his  companv  assignment. 

(91-100,  J.  A.  G.,  Nov.  6  and  Nov.  19,  1913.) 


DISCIPLINE:    Punishment;   computation   of  time  of  sentence   and  abate- 
ment. 

In  the  case  of  a  prisoner  under  sentence  approved  October  9,  1913, 
of  imprisonment  for  five  months,  inquiry  was  made  as  to  whether 
the  provision  in  paragraph  957,  Army  Regulations.  1910,  as  amended, 
that  in  computing  abatement  of  terms  of  confinement  "  all  months 
will  be  assumed  to  consist  of  30  days,"  refers  to  abatement  only  or  to 
both  abatement  and  sentence. 

Held^  that  said  provision  is  to  be  construed  as  applicable  in  the 
computation  of  both  sentence  and  abatement:  and  that  the  prisoner's 
sentence  would  expire  on  February  13,  1911,  in  case  he  earned  the 
maximum  abatement  for  good  conduct. 

(30-823.4,  J.  A.  G.,  Nov.  5,  1913.) 


DONATIONS:    Of  personal  property  to  the  United  States. 

The  citizens  of  a  certain  city  desii-ed  to  present  a  national  flag  and 
pennant  to  a  new  dredge  of  the  Ignited  States  to  show  their  apprecia- 
tion of  the  fact  that  the  dredge  had  been  named  for  their  city. 

Held,  that  the  flag  and  pennant  might  lawfully  be  accepted  by 
the  Government  for  use  on  the  dredge.  Dig.  Op.  J.  A.  G.,  1912,  p. 
912;  C-29257,  Mar.  9,  1912. 

(80-111,  J.  A.  G.,  Nov.  11,  1913.) 


320        DIGEST    OF   OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

MEDICAL  RESERVE  CORPS:    Beginning  of  active  service  and  pay;  rati- 
fication of  assignment  of  oflS.cer  to  active  service. 

Section  7  of  the  act  of  April  23,  1908  (31  Stat.,  68),  provides  for 
a  Medical  Eeserve  Corps,  to  be  composed  of  graduates  of  reputable 
schools  of  medicine,  citizens  of  the  United  States.  ayIio  shall,  upon 
an  examination  to  be  prescribed  by  the  Secretary  of  War,  be  found 
qualified  for  service  in  said  corps.  The  members  of  this  corps  re- 
ceive no  pay  unless  called  into  active  service.  Section  8  of  said  act 
provides  that — 

"In  emergencies  the  Secretary  of  War  may  order  officers  of  the 
Medical  Eeserve  Corps  to  active  duty  in  the  service  of  the  United 
States  in  such  numbers  as  the  public  interests  may  require,''  pro- 
viding the  officers  are  willing  to  accept  said  service. 

An  officer  of  the  Medical  Reserve  Corps  was  assigned  by  special 
orders  to  active  duty,  but  before  receipt  of  such  orders  he  entered 
upon  active  duty  under  orders  of  the  chief  surgeon  of  a  department 
who  acted  by  authority  of  a  telegi-am  from  the  Surgeon  General  of 
the  Army. 

Held,  that  the  officer  could  only  receive  pay  after  he  had  entered 
upon  duty  by  proper  authority,  either  at  the  post  where  he  was  as- 
signed to  duty  or  by  starting  to  go  there  in  pursuance  of  such  orders; 
held  further,  that  tile  action  of  the  department  surgeon  in  placing 
the  officer  on  active  duty  before  the  receipt  of  special  orders  from 
the  War  Department,  might  be  ratified  by  the  Secretary  of  War, 
in  which  event  the  officer  would  be  placed  in  the  same  situation  as 
though  his  employment  had  originally  been  authorized  by  the  Sec- 
retarj^ 

((>^227.4,  J.  A.  G.,  Nov.  13,  1913.) 


RETIRED   OrnCEilS:   Assignment   to   educational   institution;    right  to 
allowances  as  mounted  officer. 

A  major  on  the  retired  list  of  the  Army  was  assigned  to  active  duty 
as  professor  of  military  science  and  tactics  at  the  university  of  a 
State,  pursuant  to  the  provisions  of  section  1225,  Eevised  Statutes, 
relating  to  the  assignment  of  officers  of  the  Army  to  duty  as  pro- 
fessors, etc.,  at  educational  institutions,  as  amended  by  the  act  of 
November  3.  1893  (28  Stat.,  f),  which  provides  that — 

"■  Officers  on  the  retired  list  of  the  Army  maj^  upon  their  own 
application  be  detailed  to  such  duty  and  when  so  detailed  shall 
receive  the  full  pay  of  their  rank."' 

The  act  of  March  3,  1909  (35  Stat.,  738),  provides  with  reference 
to  retired  officers  so  detailed,  that  they  shall  '"  receive  the  full  pay 
and  allov,ances  of  their  rank."  with  certain  limitations  upon  the  pay 
of  officers  above  the  grade  of  major. 

Par.  3.  Cir.  81,  W.  D..  September  30,  1908,  specifies  that— 

"  Officers  of  the  Army  on  the  retired  list  who  may  be  detailed  to 
active  duty  *  *  *  as  professors  of  militar}-  science  and  tactics  at 
educational  institutions,  are  not  required  to  be  mounted." 

The  officer  claimed  that  his  duties  required  him  to  be  mounted,  and 
requested  that  his  particular  service  be  declared  to  be  of  that  char- 
acter and  that  he  be  allowed  forage  and  stabling  for  two  horses  kept 
by  him  and  used  on  said  duty. 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE    GENERAL.       321 

Held,  that  there  was  nothing  in  the  character  of  the  service  as 
described  in  the  law  which  re(iiiired  that  an  officer  detailed  as  pro- 
fessor or  instructor  at  an  educational  institution  should  be  mounted; 
that  the  Secretary  of  War  was  not  authorized  to  give  such  service  a 
character  different  from  that  implied  in  the  law  by  declaring  the  same 
to  require  the  services  of  a  mounted  officer;  and  that  the  officer's 
request  should  be  denied. 

(72-140,  J.  A.  G.,  Nov.  12,  1913.) 


RETIREMENT:    Of  enlisted  men;  counting  time  for  service  in  the  Philij)- 
pine  Scouts. 

An  officer  of  the  Philippine  Scouts  who  had  had  previous  service 
as  a  commissioned  officer  l)ut  Tiot  as  an  enlisted  man,  first  in  the  State 
Volunteers  and  then  in  the  United  States  Volunteers  in  the  Spanish 
War,  desired  to  know  whether  his  service  as  an  officer  in  the  Philip- 
pine Scouts  could  be  counted  as  double  time  in  computing  his  time 
for  retirement  as  an  enlisted  man  of  the  Army,  under  the  act  of 
March  2,  1907  (34  Stat.,  417),  in  connection  wdth  the  acts  of  June  30, 
1902  (32  Stat.,  512),  and  June  12,  1906  (34  Stat.,  248).  The  act  of 
May  26,  -1900  (31  Stat.,  209) ,  provides  that : 

"■'Hereafter  in  computing  length  of  service  for  retirement  credit 
shall  be  given  the  soldier  for  double  the  time  of  his  actual  service  in 
Porto  Rico,  Cuba,  or  in  the  Philippine  Islands." 

Held,  that  the  acts  allowing  service  with  the  Philippine  Scouts  to 
be  counted  in  computing  time  necessary  to  enable  an  enlisted  man  of 
the  Regular  Army  to  retire,  are  applicable  only  to  commissioned 
officers  of  the  Philippine  Scouts  who  have  had  previous  service  as 
enlisted  men  in  the  Regular  Army,  and  who  may  return  to  the  ranks 
of  the  Regidar  Army;  and  that  should  this  officer  resign  his  commis- 
sion in  the  Philippine  Scouts  and  'enlist  in  the  Army,  he  would  not 
thereafter,  upon  application  for  retirement,  be  entitled  to  count  his 
commissioned  service  in  the  Philippine  Scouts. 
(88-800,  J.  A.  G.,  Oct.  25,  1913.) 


DECISIONS  OF  THE  COMPTEOLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

ACCOUNTABILITY:   Disbursement  of  public  funds;  manner  of  payment 
in  foreign  countries. 

A  decision  was  requested  as  to  whether  or  not  a  disbursing  officer 
was  authorized  to  pay  a  creditor  of  the  United  States  residing  in  a 
foreign  country  by  bill  of  exchange  or  draft  purchased  from  a  bank, 
in  a  case  where  payment  was  to  be  made  in  foreign  currency  or 
where  the  purchase  had  been  made  at  a  given  price  in  the  country  of 
purchase. 

Held,  that  the  purchase  of  a  bill  of  exchange  or  draft  to  be  sent  to 
a  public  creditor  residing  in  a  foreign  country  w^as  not  authorized  as 
a  payment  of  the  creditor,  and  that  payment  of  such  creditors  should 
continue  to  be  made  as  indicated  in  the  decision  of  December  4,  1907 

03668"— 17 21 


322        DIGEST   OF    OPIXIONS    OF    THE    JUDGE    ADVOCATE   GENERAL. 

(li  Comp.  Dec,  339)  ;  that  is,  in  the  manner  prescribed  in  circular 
No.  52,  Treasury  Department,  of  July  29,  1907,  or  by  international 
post-office  money  order. 

(Comp.  Geo.  E.  Dov.ney,  Xov.  6,  1913.) 


COMMUTATION  OF  QUASTERS:   Service  with  troops  while  temporarily 
absent  from  station  at  which  no  duties  were  to  be  performed. 

Certain  officers  of  the  Army  while  on  duty  at  posts  where  they 
were  not  entitled  to  commutation  of  quarters,  were  directed  to  take 
station  at  Manila,  P.  I.,  where  no  quarters  were  available  for  their 
occupancy  and  where  they  had  no  duties  to  perform.  Upon  arrival 
there  they  were  immediately  directed  to  proceed  to  various  points 
mentioned  for  temporary  survey  duty  with  troops.  It  was  not  nec- 
essary for  them  to  maintain  or  have  quarters  in  Manila,  and  after 
the  performance  of  the  temporary  duty  they  v*ere  to  return  to 
the  posts  where  they  had  at  first  been  stationed.  Commutation  of 
quarters  vras  claimed  as  being  temporarilj^  absent  from  their  station 
at  IManila  on  duty  in  the  field. 

Held,  that  the  orders  directing  the  officers  to  take  station  at  a  place 
where  they  had  no  duties  to  perform  and  while  their  duties  required 
them  to  be  elsewhere,  could  not  operate  to  give  them  a  i-ightto  com- 
mutation of  quarters,  and  the  action  of  tlie  Auditor  for  the  War 
Department  disallowing  such  commxU.tation  was  affirmed. 

(Comp.  Geo.  E.  Downey,  Nov.  10,  1913.) 


DISBURSITTG    OFFICERS:    Crediting    payments    made    under    rulings    in 
force  at  the  time;  heat  and  light  allowances. 

A  disbursing  officer  made  payments  for  heat  and  light  supplied  to 
an  Army  officer's  family  living  in  San  Francisco,  Cal.,  from  Novem- 
ber 16,  1911,  to  January  13,  1912,.  while  the  officer  himself  was  sta- 
tioned Avith  his  regiment  in  the  Canal  Zone,  upon  the  certificate  of 
the  officer  that  the  public  quarters  occupied  by  him  were  not  heated 
and  lighted  at  Government  expense  and  that  no  part  of  his  heat- 
and-light  allowance  for  said  period  was  otherwise  drawn  by  him. 
In  a  decision  of  the  Comptroller's  Office,  dated  Octolier  13,  1910,  it 
was  held  that  where  an  officer  on  duty  in  the  Philippines  occupied 
quarters  not  heated  at  Government  expense,  the  fuel  allowance  to 
Avhich  he  was  entitled  in  the  Philippines  might  be  issued  to  his 
family  in  the  I'^nited  States,  This  decision  was  subsequently  over- 
ruled by  decisions  rendered  subsequently  to  the  time  when  the  above 
payments  were  made. 

Held.,  that  the  later  decisions  could  not  operate  to  deny  credit  to 
a  disbursing  officer  who  had  made  payments  for  heat  and  light  fur- 
nished under  regulations  and  decisions  in  force  at  the  time  of  pay- 
ment; and  that  credit  should  be  given  him  for  such  payments,  not 
in  excess  of  the  amounts  allowable  under  such  regulations  and  de- 
cisions; but  that  this  rule  would  not  necessarily  apply  to  the  officer 
who  received  the  unauthorized  payments,  and  in  the  future  the 
accounting  officers  would  be  warranted  in  taldng  into  consideration 
such  unauthorized  payments  in  settling  for  anything  which  might 
be  due  the  officer. 

(Comp.  Geo.  E.  Downey,  Nov.  13,  1913.) 


DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE    GENERAL.       323 

PAY   OF  ARMY:   Increase   for   foreign   service;   physical  presence  in   the 
ITnited  States. 

The  act  of  June  30,  1902  (32  8tat.,  512),  provides: 

"That  hereafter  the  pay  proper  of  all  commissioned  officers  and 
enlisted  men  serving  beyond  the  limits  of  the  States  comprising 
the  I'nion  and  the  Territories  of  the  United  States  contiguous 
thereto  shall  be  increased  ten  per  centum  for  ofricers  and  twenty 
per  centum  for  enlisted  men  o\er  and  above  the  rates  of  pay  proper 
as  fixed  bv  law  for  time  of  peace,  and  the  time  of  such  service  shall 
be  counted  from  the  date  of  departure  from  said  States  to  the  date 
of  return  thereto.'' 

The  Auditor  for  the  War  Department  submitted  a  modification  of 
the  existing  construction  of  said  law  by  deciding  that  no  officer  or 
enlisted  man  of  the  Army  who  is  physically  present  in  the  United 
States  can  receive  foreign-service  pay  under  said  act.  The  Auditor's 
decision  was  approved,  thus  reversing  the  decision  of  the  Assistant 
Comptroller  of  June  28,  1007  (13  Comp.  Dec,  884),  but  that  no  in- 
justice might  be  done,  held,  that  where  payments  had  theretofore 
been  made  by  disbursing  officers  under  the  former  ruling  of  the 
Comptroller  such  payments  Avould  be  passed  to  their  credit. 

(Comp.  Geo.  E.  Downey,  Nov.  20,  1913.) 


EEPAia  OF  BUILDIK"GS:  Of  the  Engineer  Department  used  as  barracks 
and  quarters;  appropriation. 

Two  buildings  of  the  Engineer  Department  located  at  Fort  Flag- 
ler, Wash.,  not  being  required  for  immediate  use  by  that  Department, 
were  turned  over  to  the  quartermaster  of  the  post  and  were  used  as 
quarters  for  troops.  It  was  contemplated  that  the  buildings  would 
be  again  needed  for  the  Engineer  Department,  which  department, 
for  that  reason,  declined  to  relinquish  control  of  them,  but  refused  to 
make  interior  repairs. 

Fleld^  that  the  payment  for  the  necessary  repairs  to  said  buihlings 
while  so  occupied  as  quarters  vv'as  authorized  from  the  apj^ropriation 
for  "Barrncks  and  Quarters"  contained  in  the  act  of  March  2,  1913 
(37  Stat.,  714). 

(Comp.  Geo.  E.  Downey.  Nov.  17,  1913.) 


THANSPORTATION:  Professional  books  as  household  effects  on  chang-ing 
station. 

A  railroad  company  transported  the  personal  property  of  an  officer 
of  the  Army  changing  station  which  property  consisted,  besides 
variotis  articles  of  equipment  and  household  furniture,  of  a  (luantity 
of  professional  books,  all  apparently  loaded  into  one  car.  The  com- 
l)any  contended  that  the  professional  books  were  not  properly  in- 
cluded in  household  goods  entitled  to  c^irload  ratings,  and  that  pay- 
ment should  be  made  therefor  in  addition  to  the  carload  rate  allowed 
for  the  remainder  of  the  shipmerit. 

Ileld^  that  while  for  administrative  purposes  professional  books 
Vt'ere  segregated  by  Department  regulations  from  other  household 
goods  of  an  officer  changing  station,  yet  as  the  term  was  used  in  rail- 


324       DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE    GENEEAL. 

road  classification,  it  embraced  all  articles  which  were  reasonably 
necessary  and  proper  for  the  maintenance  of  a  home  and  included 
professional  books.     The  claim  was  disallowed. 
(Comp.  Geo.  E.  Downey,  Nov.  6,  1913.) 


TEANSPORTATION:  Party  rates  where  transportation  request  called  for 
a  less  number. 

A  transporation  request  called  for  the  transportation  of  nine  per- 
sons between  two  points  on  first-class  limited  tickets.  But  one 
ticket  was  issued  and  the  men  traveled  together  as  a  party.  There 
was  a  party  rate  in  force  between  the  points  for  parties  of  not  less 
than  ten,  and  the  party  rate  for  ten  persons  was  less  than  the  total 
of  the  single  fares  for  nine. 

Held,,  that  there  being  no  party  rate  in  force  for  nine  persons  trav- 
eling together,  the  railroad  company  was  entitled  to  a  single  fare  for 
each  person  transported  on  the  request,  and  that  the  quartermaster 
was  in  fault  in  not  issuing  a  request  for  a  ten-party  rate  ticket. 

(Comp.  Geo.  E.  Downey,  Nov.  14,  1913.) 


OPINION  OF  THE  COURT. 

(Digest  prepared  in  the  office  of  the  Judge  Advocate  General.) 
CONTRACTS:  Execution  of;  enforcing  parol  contract  with  United  States. 

Section  3744,  Revised  Statutes,  provides: 

"  It  shall  be  the  duty  of  the  Secretary  of  War,  of  the  Secretary  of 
the  Navy,  and  of  the  Secretary  of  the  Interior,  to  cause  and  require 
every  contract  made  by  them  severally  on  behalf  of  the  Government, 
or  by  their  officers  under  them  appointed  to  make  such  contracts,  to 
be  reduced  to  writing,  and  signed  by  the  contracting  parties  with 
tlieir  names  at  the  end  thereof." 

An  action  was  brought  by  the  United  States  to  recover  damages 
for  breach  of  an  alleged  contract  by  which  a  steamship  company 
agreed  to  furnish  two  steamers  to  transport  for  the  United  States 
not  less  than  8,000  tons  of  coal  from  Atlantic  ports  to  San  Fran- 
cisco, Cal. 

Fields  that  such  statutory  provision  was  not  merely  for  the  benefit 
of  the  Government,  but  was  mandatory,  and  hence  the  United  States 
could  not  recover  damages  for  breach  of  a  steamship  companj^'s 
parol  contract  to  carry  coal  to  Pacific  ports  in  accordance  with  the 
steamship  company's  bid,  where  it  refused  to  enter  into  a  contract 
in  writing  when  tendered. 

{New  York  <£  P.  R.  S.  S.  Co.  v.  United  States,  United  States  Cir- 
cuit Court  of  Appeals,  206  Fed.  Eep.,  443.) 


BULLETIN   1. 

[Note.— Bulletin  No.  3S  is  the  last  of  tho  series  for  1013.] 

Bulletin  1  WAR  DEPARTMENT, 

No.  1.     J  WASin-SGTo:s,  Ja/tuari/  20,  1914- 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  December,  1913,  including  some  previ- 
ous opinions  not  heretofore  published,  of  certain  decisions  of  the 
Comptroller  of  the  Treasury,  and  of  decisions  of  courts,  is  published 
for  the  information  of  the  service  in  general. 
[2094269,  B— A.  G.  O.] 

By  order  of  the  Secretary  of  AVar  : 

LEONARD  WOOD, 

31  a j 07'  General,  Chief  of  Staff. 
Official  : 

GEO.  ANDREWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

CLAIMS:    For  assisting  in  extinguishing  a  fire  on  a  Government  vessel; 
salvage. 

The  captain  of  a  private  vessel  rendered  assistance  with  his  vessel 
in  extinguishing  a  fire  which  broke  out  on  a  Government  boat,  and  in 
so  doing  sustained  damages  in  the  loss  of  personal  property,  for 
which  he  claimed  compensation. 

Held,  that  if  it  be  shown  that  the  Government  vessel  was  in  real 
danger  of  destruction  or  of  serious  damage  fiom  the  fire,  and  the 
service  was  rendered  voluntarily  in  saving  the  vessel  from  such 
danger,  the  claim  might  be  treated  as  one  in  the  nature  of  salvage 
and  paid  accordingly,  provided  the  service  was  not  rendered  as  a 
part  of  the  claimant's  regular  duty. 

(18-400,  J.  A.  G.,  Dec.  1,  1913.)' 


DISCHARGE:  By  purchase;  date  when  right  becomes  effective;  discharge 
away  from  permanent  station. 

War  Department  General  Order  23  of  Mai'ch  28,  1913,  fixed  for 
discharges  by  purchase  after  11  years'  service  a  rate  of  $30  for  the 
United  States  and  $80  for  the  Philippine  Islands.  Prior  to  said 
order  the  rate  was  $30  for  like  length  of  service  regardless  of  place  of 
discharge. 

A  soldier  stationed  in  the  Phili])pine  Islands  went  on  furlough  for 
three  months,  and  while  in  the  United  States  on  said  furlough  and 
two  days  before  the  date  of  General  Order  No.  23,  applied  for  his 
discharge  by  purchase.     His  application  having  been  approved,  he 

325 


326       DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

was  (liscliargecl  April  IT,  1913,  at  Fort  McDowell,  Cal.,  to  which 
post  he  had  reported  for  duty  three  days  before,  relinquishing  the 
balance  of  his  furlough.  He  was  not  relieved  from  duty  in  the 
Philippine  Islands  nor  assigned  to  any  permanent  station  in  the 
United  States. 

Held.,  that  the  soldier's  rights  should  be  adjusted  as  of  the  date  of 
his  application,  and  that  he  should  be  charged  only  the  rate  in  force 
at  the  time  of  such  application :  but  that  for  the  purposes  of  General 
Order  No.  23  he  should  be  regarded  as  serving  in  the  Philippine 
Islands  until  his  service  in  the  United  States  had  been  regularized 
by  assignment  to  some  permanent  station. 

(•28-2-24,  J.  A.  G.,  Dec.  20,  1913.) 


P AS,DON :   Power   of ;    remission ;    restoration   of   files   after   promotion    of 
another  officer. 

An  officer  had  b'een  sentenced  to  dismissal,  })ut  the  sentence  v.-as 
commuted  by  the  President  to  a  reduction  of  50  files  in  lineal  rank. 
He  was  afterwards  promoted,  and  while  serving  in  another  grade 
than  that  in  which  he  was  serving  at  the  time  of  sentence  applied 
for  a  remission  of  the  sentence  reducing  him  in  files. 

Held,  that  the  promotion  to  another  grade  of  officers  who  gained 
by  this  officer's  reduction  in  files  rendered  the  sentence  of  reduction 
fullv  executed  and  placed  it  ])evond  the  power  of  remission  or  pardon. 

(68-111.1,  J.  A.  G..  Dec.  23,' 1913.) 


POSTAL  SERVICE:  Use  of  penalty  envelopes  in  transmitting  books  be- 
longing to  a  department  headquarters  library. 

Section  5  of  the  act  of  March  3.  1877,  reads  in  part  (19  Stat..  335)  : 

"  That  it  shall  be  lawful  to  transmit  through  the  mail,  free  of 
postage,  any  letters,  packages,  or  other  matters  relating  exclusively 
to  the  business  of  the  Ignited  States." 

The  act  of  July  5,  1884  (23  Stat.,  158),  extends  this  provision  to  all 
officers  of  the  United  States  Government,  not  including  members  of 
Congress,  the  envelopes  in  all  cases  to  bear  appropriate  indorsements 
containing  the  proper  designation  of  the  office  from  which,  or  the 
officer  from  whom,  the  same  is  transmitted,  with  a  statement  of  the 
penalty  for  its  use. 

Held,  that  books  belonging  to  the  department  headquarters  library 
such  as  would  be  of  professional  benefit  to  officers  of  the  Department 
miffht  be  sent  through  the  mail  under  the  authority  of  said  statute  to 
the  officers  on  duty  in  the  department  and  mailed  by  them  in  return, 
under  the  official  frank  of  the  department. 

(22-020.  J.  A.  G.,  Dec.  11.  1913.) 


RETIREMENT;  Philippine  Scouts. 

An  officer  of  the  Philippine  Scouts  applied  for  retirement  under 
the  provisions  of  section  1243,  Revised  Statutes,  claiming  that  he 
had  served  over  30  years,  17  on  the  western  frontier  and  13  in  the 
tropics. 


DIGEST   OF    OPIN-IONS    OF    THE   JUDGE   ADVOCATE    GENERAL.       327 

Ileld^  that  the  law  which  fixes  the  pay  and  allowances  of  Philip- 
pine Scouts  the  same  as  those  authorized  for  officers  of  like  grade  in 
the  Kegular  Army,  did  not  incUide  the  privilege  of  retirement,  and 
that  the  retirement  of  the  officer  could  only  be  accomplished  through 
an  act  of  Congress.    Dig.  Ops.  J.  A.  G.,  1912,  p.  987,  5a. 

(6-250,  J.  A.  G.,  Dec.  2,  1913.) 


KETIE/EMENT:  Promotion  for  service  other  than  as  a  cadet;  picket  duty 
at  West  Point,  N.  Y. 

Certain  officers  of  the  Army  now  retired  applied  for  promotion  of 
one  grade  in  rank  "for  serx  ices  in  the  Civil  War  rendere<l  otherwise 
than  as  a  cadet''  under  the  provisions  of  the  act  of  April  2o,  1904 
(33  Stat.  264),  which  authorizes  the  retirement  or  advancement  on 
the  retired  list  of  one  grade  above  the  rank  held  at  the  time  of  re- 
tirement of  officers  below  the  grade  of  brigadier  general  vdio  served 
in  the  Eegular  or  Volunteer  forces  during  the  Civil  War  prior  to 
April  9,  1865,  "  otherAvise  than  as  a  cadet."  Said  officers  were  cadets 
at  West  Point,  N.  Y.,  during  the  draft  riots  in  New  York  City  in 
1803,  and  while  the  academic  studies  were  suspended  at  the  academy 
they  were  assigned  to  picket  duty  with  instructions  to  watch  for 
rioters  in  boats,  who  according  to  rumors,  intended  to  visit  and  de- 
stroy Cold  Spring  Foundry,  then  the  largest  establishment  for  mak- 
ing guns  in  the  country,  and  at  the  same  time  to  visit  and  destroy 
West  Point. 

Ueld^  following  a  previous  opinion  of  this  office  _(C.  21468,  J.  A.  G., 
May  1,  1907),  that  the  service  rendered  was  service  as  a  cadet,  and 
thait  the  request  must  be  denied. 

(88-410,  J.  A.  G.,  Dec.  5,  1913.) 


TRANSPORTATION:   Signing-  request;   delegation  of  authority. 

A  request  for  transportation  issued  from  the  office  of  a  qnarter^ 
master  was  countersigned  in  the  name  of  the  quartermaster  by  the 
post  quartermaster  sergeant  in  cliarge  of  the  office  in  liis  absence, 
the  post  quartermaster  sergeant  adding  his  own  name. 

Held^  that  the  regulations  contemplate  the  final  issue  of  transpor- 
tation requests  by  commissioned  officers  of  the  Quartermaster  Corps; 
that  the  law  authorizing  the  appointment  of  post  quartermaster 
sergeants  did  not  authorize  such  sergeants  to  perform  any  duty  im- 
posed upon  commissioned  officers;  and  that  the  duty  of  countersign- 
ing transportation  requests  required  the  exercise  of  judgment  and 
discretion  which  could  not  be  entrusted  by  the  officer  to  others.  Held 
further,  that  as  the  officer  had  ratified  the  action  of  the  post  quarter- 
master sergeant  in  signing  his  name  to  the  transportation  request, 
no  question  could  be  raised  as  to  the  validity  of  a  claim  for  transpor- 
tation furnished  thereunder,  hut  adelsed  that  the  practice  be  discon- 
tinued for  the  future. 

(94-201,  J.  A.  G.,  Dec.  10,  1913.) 


828       DIGEST    OF   OPIXIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

ABSENCE:    On  account  of  sickness  in  family;  civilian  clerk. 

A  clerk  in  the  office  of  the  officer  in  charge  of  public  buildings  and 
grounds  was  absent  4  days  on  account  of  a  death  occurring  in  his 
family.  During  the  year  he  had  already  taken  30  days  annual  leave, 
Ijut  had  taken  but  6J  days  leave  on  account  of  personal  illness,  and 
had  worked  51  hours  overtime,  or  beyond  7  hours  per  working  clay. 

Section  7  of  the  act  of  March  15,  1898  (30  Stat.,  316),  requires  that 
the  heads  of  the  several  executive  departments  shall  exact  of  all 
clerks  and  employees  in  their  respective  departments  not  less  than 
7  hours  of  labor  each  day,  except  on  Sundays  and  public  holidays, 
v,nd  further  provides  as  follows: 

"•  The  head  of  any  department  may  grant  thirty  days'  annual  leave 
with  pay  in  any  one  year  to  each  clerk  or  employe:  And  provided 
furtliei\  That  where  some  member  of  the  immediate  family  of  a  clerk 
or  employe  is  afflicted  with  a  contagious  disease  and  requires  the 
care  and  attendance  of  such  employe,  or  where  his  or  her  presence  in 
the  department  would  jeopardize  the  health  of  fellow-clerks,  and  in 
exceptional  and  meritorious  cases,  where  a  clerk  or  employe  is  per- 
sonally ill,  and  where  to  limit  the  annual  leave  to  thirty  days  in  any 
one  calendar  year  would  work  peculiar  hardship,  it  may  be  extended, 
in  the  discretion  of  the  head  of  the  department,  with  pay,  not 
exceeding  thirty  days  in  any  one  case  or  in  any  one  calendar  year." 

Held^  That  said  law  made  no  provision  for  the  granting  of  absence 
otlier  than  as  specified,  and  did  not  authorize  the  granting  of  a  leave 
for  the  cause  stated ;  that  it  was  within  the  discretion  of  the  head  of 
the  department  to  require  the  so-called  overtime  work;  and  that  the 
law  made  no  provision  for  the  extension  of  leave  on  account  of  such 
overtime.  The  claim  for  pay  for  the  time  of  such  absence  was 
disallowed. 

(Comp.  Geo.  E.  Downey,  Dec.  8,  1913.) 


APPE/OPHIATIONS :  Use  of;  construction  and  repair  of  hospital;  estimates. 

The  Army  appropriation  act  of  March  2,  1913  (37  Stat,  717), 
appropriated : 

'"•  For  construction  and  repair  of  hospitals  at  military  posts  already 
established  and  occupied  *  *  *  ^nd  for  the  construction  and 
j-epair  of  general  hospitals  and  expenses  incident  thereto,  and  for 
additions  needed  to  meet  the  requirements  of  increased  garrisons, 
$450,000.^' 

The  estimates  upon  which  this  appropriation  was  based  contained 
an  explanatory  note  stating  the  purposes  for  w^hich  the  entire  sum 
appropriated  was  to  be  used.  It  was  proposed  to  expend  a  portion 
of  this  appropriation  for  the  construction  of  better  cantonment  ac- 
commodations for  the  sick  at  Texas  City,  Tex.  The  estimate  did 
not  include  provision  for  the  construction  of  temporary  hospitals  in 
camp,  neither  was  any  express  provision  therefor  made  in  the  appro- 
priation act. 


DIGEST   OF   OPINIONS   OF    THE    JUDGE    ADVOCATE   GENERAL.       329 

Held,  that  said  appropriation  Avas  not  available  for  the  constnie- 
tion  of  temporary  hospitals  in  camp. 
(Comp.  Geo.  E.  Downey.  Dec.  8,  1913.) 


COMMUTATION   OF   QUARTEKS:   At   temporary   station    while   retaining 
quarters  at  permanent  station. 

An  officer  in  occupancy  of  public  quarters  at  his  permanent  station 
was  ordered  to  report  to  the  commandant  of  the  Army  Service 
Schools  at  Fort  Leavenworth,  Ivans.,  for  a  special  course  in  tactics, 
and  on  completion  of  the  same  to  rejoin  his  proper  station.  The 
Secretary  of  War  advised  the  commandant  by  telegraph  that  any 
available  quarters  might  be  used  for  the  accommodation  of  the  officer, 
and  that  if  none  were  available  connnutation  was  authorized.  The 
commandant  reporting  that  no  quarters  Avere  available  for  him,  com- 
mutation was  paid,  and  the  amount  having  been  disallowed  by  the 
auditor,  was  refunded  by  the  officer.  The  officer  claimed  comnni- 
tation  by  virtue  of  the  provisions  of  paragTaph  1325,  Army  Eegula- 
tions,  1910,  which  provided  that: 

"An  officer  does  not  lose  his  right  to  quarters  or  commutation  at 
his  permanent  station  by  a  temporary  absence  on  duty.  While  he 
continues  to  claim  and  exercise  that  right,  he  can  not  legally  demand 
quarters  or  commutation  thereof  at  any  other  station. 

"  The  mere  fact  that  an  officer's  family  or  his  household  goods  are 
permitted  by  proper  authority  to  remain  in  quarters  at  a  military 
station  does  not  prevent  the  assignment  of  quai'ters  to  him  where 
he  is  actually  serving,  or  debar  him  from  commutation  if  he  is  on  duty 
without  troops  at  a  station  where  there  are  no  public  quarters.  In 
these  exceptional  cases  commutation  of  quarters  will  be  allowed  only 
on  the  approval  of  the  general  commanding  the  troops  in  the  Philip- 
pine Islands  in  cases  arising  in  his  command;  in  all  other  cases  on 
the  approval  of  the  Secretary  of  War  after  recommendation  by  the 
department  commander     *     *     *." 

lleld^  that  it  was  doubtful  wdiether  the  regulation  applied  to  a 
case  of  this  kind,  but  that  if  it  did,  it  transcended  the  law  which 
did  not  entitle  an  officer  to  commutation  of  quarters  at  his  tempo- 
rary station  in  addition  to  public  quarters  at  his  permanent  station 
(19  Comp.  Dec,  73)  ;  and  that  the  telegram  of  the  Secretary  of  War, 
if  it  be  considered  as  an  attempt  to  authorize  payment  of  such 
commutation,  w^as  without  effect. 

(Comp.  Geo.  E.  Downey,  Dec.  i>3,  1913.) 


CONTRACTS:  Bailee  for  hire;  liability  of  the  Government  for  damages. 

A  barge  belonging  to  a  private  company  was  in  use  in  connection 
with  repairs  being  made  to  a  certain  lock  on  the  Kanawha  River, 
W.  Va.  In  unloading  a  derrick  boom  the  Government  engineer  lost 
control  of  his  engine  and  allowed  the  timber  to  fall,  which  broke 
into  two  pieces,  one  piece  going  to  the  bottom  of  the  barge  bi'caking 
some  boards  and  causing  it  to  sink.  It  was  reported  that  the  accident 
was  partly  due  to  a  defect  in  the  broken  timber,  but  it  was  not  shown 
that  the  engineer  was  at  fault  or  careless,  or  that  he  was  incomj)etent, 
or  that  the  engine  was  defective  or  out  of  repair. 


330        DIGEST   or    OPIXIOXS    OF    THE   JUDuE   ADVOCATE   GEIS^EKAL. 

IleJd^  That  the  Government,  being  a  bailee  for  hire,  should  be 
held  only  to  the  exercise  of  ordinary  care  and  was  liable  only  for 
ordinary  negligence  in  the  care  and  use  of  the  property  hired;  and 
that  it  did  not  become  the  insurer  of  the  barge,  and  was  not  liable  for 
damages  brought  about  by  unforeseen  causes  which  could  not  be 
guarded  against.  Held  further^  that  the  liability  of  tiie  Government 
did  not  appear  from  the  facts  presented,  but  that  it  appeared  that 
the  damage  was  occasioned  by  an  unavoidable  accident  for  which, 
under  the  circumstances,  the  Government  was  not  responsible. 

(Comp.  Geo.  E.  Downey,  Nov.  22,  1913.) 


DECISIONS  OF  THE  COUSTS. 

(Digests  prepared  in  tlie  offi'-e  of  the  Judge  Advocate  General.) 

EXTS.A-DUTY  PAY:   Service  as  telegraph,  operator;   sufficiency   of  desig- 
nation. 

A  private  soldier  of  the  Hospital  Corps  was  on  November  9,  1900, 
j)laced  in  charge  of  the  telegraph  and  telephone  office  at  a  general 
hospital  by  orders  of  the  surgeon  commanding  the  hospital,  and 
l^erformed  the  duties  of  said  position  until  September  25,  1902.  At 
no  time  Avhile  performing  the  duty  of  telegraph  operator  was  he 
under  the  supervision  of  an3'one  connected  with  the  Signal  Coips, 
but  remained  under  the  orders  of  the  medical  officer  commanding 
at  the  hospital.  The  muster  rolls  during  the  time  of  this  service 
reported  him  as  "  telegraph  operator." 

Section  1287,  Eevised  Statutes,  provides  that : 

"  When  soldiers  are  detailed  for  employment  as  artificers  or  labor- 
ers in  the  construction  of  permanent  military  works,  public  roads,  or 
other  constant  labor  of  not  less  than  10  days'  duration,  they  shall 
receive  in  addition  to  their  regular  pay,"  certain  compensation. 

The  act  of  July  5, 1884  (23  Stat.,  110),  appropriated  for  extra-duty 
pay  at  the  rate  of  50  cents  per  day  for  mechanics,  artificers,  school 
teachers,  and  clerks  at  Army,  Division,  and  Department  head- 
quarters, and  at  the  rate  of  35  cents  per  day  '"  for  other  "clerks, 
teamsters,  laborers,  and  others.*'  The  act  of  March  3,  1885  (23  Stat., 
359),  fixed  the  rates  of  compensation  as  above  specified,  adding  after 
the  word  laborers  "  other  enlisted  men  on  extra  duty." 

Held.,  That  the  last  two  acts  mentioned  were  intended  as  amend- 
ments to  Section  1287,  Eevised  Statutes,  and  were  not  limited  to 
the  Quartermaster's  Department;  and  that  the  fact  that  this  man 
was  ordered  to  the  particular  duty  by  his  superior  officer  and  wag 
carried  on  the  rolls  as  a  telegraph  operator  for  the  time  of  his  service 
as  such,  amounted  to  a  sufficient  designation  or  detail  by  competent 
military  authority  to  entitle  him  to  extra-duty  pay  for  said  service. 
Iloliliaus  case,  42  C.  Cls,,  511;  11  Comp.  Dec.  i51.  The  claimant  was 
2:i\-en  judgment  for  extra-dutv  pav  at  the  rate  of  35  cents  per  day. 

{Ross  V.  United  States,  No.  21889.  C.  Cls.,  Dec.  1,  1913.) 


PRISONERS:  Parole;  good-time  allowance. 

The  act  of  June  21,  1902  (32  Stat.,  397),  provides  that  each  pris- 
oner confined  in  execution  of  a  sentence  in  any  Ignited  States  pen- 
itentiary, whose  record  justifies  it,  shall  be  entitled  to  a  deduction 


DIGEST    OF   OPIXIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       331 

for  good  time,  commencing  from  the  first  day  of  his  arrival  at  the 
penitentiary.  The  act  of  June  25,  1910  (36  Stat.,  819),  declares 
that  every  prisoner  confined  for  a  term  of  more  than  one  year,  whose 
record  shows  an  obser\ance  of  the  prison  rules  and  who  has  served 
one-third  of  his  term,  may  be  released  on  parole.  Section  3  declares 
that  the  parole  shall  be  granted  on  such  terms  as  the  board  of  parole 
shall  prescribe,  the  i)risoner  to  remain  while  on  parole  in  the  legal 
custody  and  under  the  control  of  the  warden  of  the  prison  from 
which  he  is  paroled  and  until  the  expiration  of  the  term  or  terms 
specified  in  his  sentence,  less  such  good-time  allowance  as  is  provided. 
The  act  also  provides  for  the  retaking  of  a  paroled  prisoner  who 
has  violated  his  parole,  at  any  time  within  the  term  or  terms  of  his 
sentence,  and  for  a  hearing  before  the  board,  which  may  re^'oke  the 
order  and  terminate  the  parole,  and,  if  revoked,  the  prisoner  shall 
serve  the  remainder  of  the  sentence  imposed,  the  time  the  prisoner 
was  on  parole  not  being  taken  into  account  to  diminish  the  time  of 
his  sentence. 

A  petitioner  for  a  -writ  of  habeas  corpus  was  released  on  parole 
August  12,  1911,  in  accordance  with  the  act  of  Congress  of  June  25, 
1910,  haA  ing  earned  216  days  g<x»d-time  allowance,  as  provided  by 
the  act  of  eTune  21,  1902.  He  was  returned  to  confinement  in  the  peni- 
tentiary May  29,  1912,  on  account  of  a  violation  of  his  parole  and 
for  failure  to  faithfully  observe  the  rules  governing  him  as  a  convict 
on  parole.  It  was  claimed  that  his  good-time  allov.ance  was  forfeited 
by  a  violation  of  his  parole. 

"  Held,  That  "  legal  custody  "  and  '°  control  '*  did  not  contemplate 
actual  custody  or  confinement  of  a  paroled  prisoner,  and  that  such 
a  prisoner  was  not  subject  to  prison  rules  providing  for  a  forfeiture 
of  good-time  allowance  by  a  breach  of  such  rules,  so  that  on  his 
return  for  breach  of  parole  he  was  not  subject  to  a  forfeiture  of  his 
good-time  earned,  in  determining  the  date  of  the  expiration  of  his 
sentence. 

{E\v  parte  Marcil,  20T  Fed.  Rep.,  809.) 


BULLETIN  5. 

BuixETiN  1  WAR  DEPARTMENT, 

No.  5.     J  Washington,  Fehruwry  IS,  lOlJf. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  January,  1914,  of  certain  decisions  of 
the  Comptroller  of  the  Treasury,  and  of  a  decision  of  a  court,  is 
published  for  the  information  of  the  service  in  general. 
[2094269  C— A.  G.  O.] 
By  okder  of  the  Secretary  of  War  : 

LEONARD  WOOD, 
Major  General,  Chief  of  Staff. 
Official  : 

GEO.  ANDREWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEKAL. 

CONTRACTS:  Agreement  to  transp.ort;  liability  of  the  Government. 

A  contract  v.-as  entered  into  with  a  company  at  Fort  McDowell, 
('al.,  for  the  installation  of  a  rock-crushing  plant,  one  paragraph 
of  the  specifications  providing  that  "  transportation  from  Fort  Mason 
dock  to  site  at  Angel  Island  will  be  furnished  hy  the  Government," 
except  certain  articles  not  involved  in  the  question  here  presented. 
A  box  containing  belting  and  an  electric  switch  was  delivered  by  the 
contractor  for  transportation,  and  was  rec-eived  on  board  a  vessel 
under  the  control  of  the  Army  Transport  Service.  This  box  was 
not  delivered  at  its  destination,  and  after  strict  search  could  not  be 
found. 

Held.,  that  in  furnishing  the  transportation  in  question  the  Gov- 
ernment did  not  assume  the  liability  of  a  common  carrier  and  was 
not  an  insurer  against  the  loss  of  the  property,  but  having  under- 
taken to  transport  the  property  of  the  contractor  between  the  points 
mentioned,  on  failing  to  do  so  after  due  delivery  to  it  for  that  pur- 
pose, it  became  liable  under  its  contract  for  the  delivery  of  the  prop- 
ert}^  or  for  an  amount  of  money  sufficient  to  replace  it. 

(76-741,  J.  A.  G.,  Jan.  9,  1914.) 


CONTEACTS:  Eight-hour  law;  construction  of  vessels;  public  works. 

The  eight-hour  law  of  March  3,  1913  (37  Stat.,  726),  prescribes  an 
eight-hour  day  for  certain  kinds  of  labor  upon  any  public  work  of  the 
United  States,  Avith  penalties  for  violations.  It  was  proposed  to 
enter  into  a  contract  with  a  company  for  the  construction  of  certain 
steel  barges  in  connection  with  the  improvement  of  the  Ohio  River, 

332 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENEKAL.       333 

the  contract  providing  for  a  payment  of  50  per  cent  of  the  contract 
price  of  each  barge  when  it  should  have  been  provisionally  accepted 
by  the  United  States,  at  the  builders'  yard,  when,  as  stated,  the  barges 
would  be  practically  completed,  and  upon  such  payment  would  be- 
come the  property  of  the  United  States.  Final  acceptance  and  de- 
livery of  the  barges  was  to  be  made  to  the  contracting  officer  at  Louis- 
ville, Ky.  It  was  desired  to  know  whether  work  upon  the  barges 
should  be  regarded  as  being  rendered  upon  a  public  work  of  the 
United  States  within  the  meaning  of  said  act. 

Held^  that  prior  to  said  partial  payment  and  acceptance  the  barge 
did  not  become  the  property  of  the  United  States,  and  work  thereon 
was  not  rendered  upon  a  ])ublic  w^ork  of  the  United  States  within  the 
meaning  of  the  statute,  but  that  work  done  after  such  partial  accep- 
tance, in  the  correction  of  any  defects  that  might  develop  between 
the  provisional  acceptance  and  final  acceptance,  would  be  rendered 
upon  a  public  woi-k  of  the  United  States. 

It  was  also  desired  to  know  whether  or  not  the  contract  for  the  con- 
struction of  the  barge  or  vessel  would  be  a  contract  for  a  public  work, 
provided  the  contract  stipulated  for  payment  in  a  lump  sum  of  the 
entire  contract  price  after  final  acceptance  of  the  barge. 

Held^  that  such  stipulation  would  moi;e  clearly  indicate  that  the 
title  to  the  vessel  would  not  pass  to  the  United  States  and  that  prior 
to  acceptance  and  payment  it  could  not  be  regarded  as  a  public  work 
within  the  meaning  of  the  statutes. 

(32-213,  J.  A.  G.,  Jan.  9,  1914.) 


EMPLOYEES:  Compensation  for  injuries;  general  prisoners. 

A  former  private  in  the  Army  who  had  been  dishonorably  dis- 
charged therefrom  by  sentence  of  general  court-martial  desired  to 
know^  whether  or  not  he  could  get  anything  on  account  of  his  arm 
having  been  broken  while  at  work  in  prison  at  Alcatraz,  Cal. 

Held,,  that  it  is  clear  that  the  injury  received  by  the  soldier  while 
serving  as  a  general  prisoner  did  not  come  within  the  provisions  of 
the  employees'  compensation  act  of  May  80,  1908  (35  Stat.,  556).  as 
the  labor  he  was  performing  at  the  time  of  his  injury  w^as  not  based 
upon  any  contractual  relation  between  himself  and  the  Government, 
but  was  rendered  as  a  pimishmcnt  for  military  offenses 

(18-300,  J.  A.  G.,  Jan.  21,  1914.) 


HEAT  AND  LIGHT:  Sale  of  fuel  allowance  to  oflicers'  families. 

Army  Regulations  formerly  provided  for  the  issue  and  sale  of  the 
fuel  allowance  of  an  officer  to  his  family  under  certain  conditions. 
Following  the  decision  of  the  Comptroller  of  the  Treasury  (W.  D. 
Bui.  No.  1,  1913,  p.  35)  that  the  authorized  fuel  allowance  to  officers 
could  not  be  issued  to  their  families  separate  and  apart  from  the 
officers,  the  Army  Regulations  upon  the  subject  were  amended  so  as 
to  omit  provision  for  such  sale  and  issue. 

Held,  that  under  the  authority  of  the  appropriation  for  regular 
supplies  contained  in  the  various  Army  appropriation  acts,  sales  of 
fuel  might  still  be  made  to  officers  for  use  of  their  families  during 


334       DIGEST   OF    OPIXIOXS   OF    TKE    JUDGE   ADVOCATE   GENERAL. 

their  temporary  absence  from  their  post  or  station  where  their  fami- 
lies mi<j:ht  be  located,  but  that  such  sale  should  be  made  at  the  cost 
price  and  not  at  the  arbitrary  price  fixed  by  the  original  regulations. 
(72-310,  J.  A.  G.,  Jan.  3,  1914.) 


HEAT  AIvTD   LIGHT:   At  permanent   station;   officer  absent   on   temporary 
duty. 

An  officer  of  the  Army  expected  to  be  absent  from  his  permanent 
station  on  temporary  duty  in  the  field  with  his  regiment,  and  de- 
sired that  his  fuel  allowance  while  he  was  so  absent  should  be  de- 
livered to  his  family,  who  would  occupy  his  quarters  at  his  }5er- 
manent  station,  he  certifying  that  during  such  absence  he  would 
not  avail  himself  of  his  fuel  allowance  elsewhere. 

Ileld^  that  Avhile  the  law  malios  no  provision  for  heat  and  llglit 
furnished  the  family  of  an  officer  separate  and  apart  from  the  officer, 
if  his  family  continues  to  occupy  his  quarters  at  his  permanent 
station  while  he  is  absent  on  temporary  duty,  he  is  entitled  to  have 
such  quarters  heated  at  public  expense  so  long  as  they  are  so  occu- 
\}'iQd,  provided  his  quarters  at  his  temporary  station  are  not  heated 
at  public  expense,  and  that  the  request  of  the  officer  could  be  granted. 

(72-315,  J.  A.  G.,  Jan.  T,  1914.) 


HEAT  AND  LIGHT:  Furnishing'  in  kind;  exceeding  regulation  allowance. 

It  was  shown  by  the  report  of  a  commanding  officer  at  a  recruit 
depot  that  a  certain  public  building  was  only  partly  occupied  as 
quarters  for  officers,  it  being  occupied  a  part  of  the  time  by  only  one 
officer,  and  that  in  consequence  of  the  size  of  the  building  and  the 
means  employed  for  heating  it  the  total  amount  of  the  fuel  allow- 
ance for  the  officers  occupying  said  building  was  exceeded. 

Held,  that  the  regulations  limiting  the  quantity  of  fuel  allowed 
to  officers  for  heating  quarters  occupied  by  them  applies  to  cases 
where  cff.cers  undertake  to  heat  their  own  quarters,  and  not  to  cases 
where  the  burden  of  heating  public  quarters  is  undertaken  by  the 
Government :  and  that  there  was  no  legal  objection  to  exceeding  the 
fuel  allowance  of  the  officers  occupying  said  building  as  quarters 
if  the  manner  of  Iieating  the  same  was  satisfactory  to  the  Quarter- 
master Corns. 

(72-310,  J.  A.  G..  Jan.  8,  1914.) 


PUBLIC   PARKS:    District    of    Columbia;    revocable    license    for    buildings 
thereon;  Potomac  Park. 

It  was  desired  to  know  whether  any  legal  authority  existed  for 
the  granting  of  a  revocalile  license  to  a  branch  of  the  Smithsonian 
Institution  to  occupy  a  portion  of  Potomac  Park  in  the  District  of 
C'olumbia  for  an  air-craft  field  laboratory,  it  being  the  purpose  to 
construct  thereon  such  small  buildings  of  a  temporary  character 
as  might  be  necessary. 

Tlie  act  of  I-larch  3, 1897  (29  Stat.,  624),  set  aside  the  area  formerly 
known  as  Potomac  Flats,  together  with  the  Tidal  Eeservoir,  as  a 


DIGEST   OF   OPINIONS   OF   TTTE   JUDGE   ADVOCATE   GENERAL.       335 

public  park  under  the  name  of  Potomac  Park  "  to  be  forever  held 
and  used  for  a  park  for  the  recreation  and  pleasure  of  the  people." 
The  act  of  August  30,  1890  (26  Stat.,  30G),  and  of  Aiioust  :>4,  1912 
(37  Stat.,  44:4)",  prohibits  the  erection  of  any  building  or  structure 
upon  the  public  parks  of  the  District  of  Columbia  without  express 
authority  of  Congress. 

II e?d,  that  there  was  no  legal  authority  l)y  which  a  revocable 
license  for  the  purposes  intended  could  be  granted. 

(80-800,  J.  A.  G.,  Jan.  3,  1914.) 


RED   CROSS   SOCIETY:   Mileage   to   officer   assig-ned   to   take    charge   of 
first-aid  department. 

The  question  arose  as  to  whether  the  officer  detailed  to  take  charge 
of  the  first-aid  department  of  the  American  Red  Cross  Society,  pur- 
suant to  the  act  of  March  3,  1911  (36  Stat.,  1041),  was  entitled  to 
mileage  for  travel  performed  in  connection  with  his  duties. 

Held,  that  notwithstanding  the  close  relations  which  the  society 
sustains  to  the  United  States  under  existing  law,  it  is  not  made  a 
part  of  the  Army,  so  that  tra\el  performed  by  the  officer  detailed  to 
take  charge  of  the  first-aid  department  in  connection  with  his  duties 
becomes  travel  for  the  Army;  and  that  it  could  not  be  certified  that 
such  travel  was  necessary  in  the  military  service  as  required  by  the 
act  of  March  3,  1883  (22  Stat.,  456),  in  order  to  entitle  an  officer  t« 
mileage.     The  question  was,  therefore,  answered  in  the  negative. 

(8t-000,  J.  A.  G.,  Jan.  13,  1914.) 


TELEPHONE  SERVICE:  Telephones  in  private  residences;  room  used  for 
office. 

The  question  arose  as  to  whether  a  telephone  might  be  installed  in 
the  private  quarters  of  the  attending  surgeon  at  Philadelphia,  Pa.,  in 
view  of  the  provisions  of  section  7  of  the  act  of  August  23,  1912  (37 
Stat.,  414),  which  prohibits  the  expenditure  of  any  money  appropri- 
ated by  Congress  '"  for  telephone  service  installed  in  any  private  resi- 
dences or  apartments  or  for  toll  or  other  charges  for  telephone  service 
from  private  residences  or  apartments,  except  for  long-distance  tolls 
required  strictlv  for  the  public  business." 

Held,  that  if 'the  telephone  in  question  is  deemed  necessary  for  the 
public  business  of  the  attending  surgeon  at  Philadelphia,  and  if  no 
other  provision  is  made  for  such  service,  the  law  would  not  ]u-nhibit 
the  pavment  for  this  service  installed  in  a  room  of  the  officer's  i>n- 
vate  quarters  set  apart  for  the  transaction  of  his  necessary  public 
business  as  attending  surgeon. 

(72-335,  J.  A.  G..  Jan.  12,  1914.) 


TRANSPORTATION:   Travel  allowance  on  discharge;   transportation  over 
different  lines. 
The  depot  quartermaster  at  San  Francisco,  Cal..  desired  instruc- 
tion as  to  the  manner  of  issuing  transportation  requests  covennj' 
transportation  of  soldiers  on  discharge  where  they  wished  to  travel 


336       DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE    GENEEAL. 

by  some  other  line  than  that  of  shortest  mileage  to  the  point  to  which 
they  are  entitled  to  be  transported,  which  point  could  be  reached 
by  other  lines  over  longer  mileage. 

Held^  that  it  is  allowable  to  issue  transportation  requests  over 
any  of  the  lines  out  of  San  Francisco  to  any  point  desired,  pro- 
A'ided  said  point  is  not  more  distant  than  the  one  to  which  the  soldier 
is  entitled  to  transportation  as  measured  by  the  shortest  route,  or  the 
route  which  would  be  adopted  for  the  interest  of  the  Government  if 
furnishing  the  transportation,  if  the  cost  thereof  to  the  Government 
is  not  in  excess  of  the  cost  over  the  route  which  would  be  adopted  by 
the  Government.  Held  further^  that  when  the  quartermaster  has 
issued  the  transportation  request  and  furnished  subsistence  the  re- 
sponsibility of  the  Government  ceases,  and  it  has  no  concern  as  to 
what  the  various  railroad  companies  may  do  in  honoring  the  re- 
quest to  other  points  so  long  as  the  request  bears  the  certificate  of  the 
traveler  that  transportation  has  been  furnished. 

(94-332,  J.  A.  G.,  Jan.  10,  1914.) 


TRA]SrSPOilTATIO]Sr:  Of  general  prisoners  on  discharge  from  confinement; 
sentence  of  court-martial. 

The  act  of  March  2,  1913  (37  Stat.,  715),  appropriates: 

••' For  transportation  *  *  *  of  persons  on.  their  discharge  from 
the  United  States  military  prison  or  from  any  place  in  which  they 
have  been  held  under  a  sentence  of  dishonorable  discharge  and  con- 
finement for  more  than  six  months,  or  from  the  Government  Hos- 
pital for  the  Insane  after  transfer  thereto  from  such  prison  or  place, 
to  their  homes  (or  elsewhere  as  they  may  elect),  provided  the  cost 
in  each  case  shall  not  be  greater  than  to  the  place  of  last  enlistment." 

Ileld^  that  this  legislation  should  be  construed  as  authorizing  the 
transportation  of  a  released  general  prisoner  as  in  said  act  provided 
only  when  he  shall  have  been  confined  for  more  than  six  months 
under  a  sentence  of  dishonorable  discharge  and  confinement 

(30-824.2,  J.  A.  G.,  Jan.  21,  1914.) 


DECISIONS  OF  THE  COMPTROLLEU  OE  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Alvocate  General.) 
CONTHACTS:  Damages  for  failure  to  furnish  hay  according  to  contract. 

A  contract  was  entered  into  for  delivery  of  a  certain  quantity  of 
number  one  Kansas  upland  prairie  hay  at  Fort  D.  A.  Russell,  Wye, 
during  the  first  quarter  of  the  fiscal  year  1911.  The  contract  was 
approved  June  9,  1910,  but  before  that  date  two  orders  were  given 
for  hay  apparently  intended  to  come  under  the  terms  of  the  con- 
tract. The  contractor  did  not  deliver  the  hay  as  called  for,  and  the 
Government  purchased  other  hay  of  a  different  kind  at  Cheyenne, 
Wyo.  The  kind  called  for  by  the  contract  w^as  not  on  sale  at  Chey- 
enne, but  was  sold  at  Denver.  It  does  not  appear  that  any  attempt 
was  made  to  purchase  Kansas  upland  prairie  hay  of  the  quality 
called  for  by  the  contract,  and  it  was  not  shown  whether  the  kind 
purchased  ait  a  higher  price  was  of  a  like  or  of  a  superior  grade  to 
that  called  for  in  the  contract. 


DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEEAL.       337 

Held,  that  Avhile  it  appeared  that  the  contractor  was  in  ckfanlt 
under  his  contract  it  was  incumbent  upon  the  Government  to  show 
the  damages  which  it  sustained.  Avhich  damages  were  limited  to  the 
difference  in  cost  between  the  article  called  for  in  the  contract  and 
the  cost  of  the  same  or  practically  the  same  article  on  the  market, 
and  coidd  not  be  measured  by  the  difference  betAveen  the  contract 
price  and  the  cost  of  another  article  materially  different  selling  in 
the  market  for  a  much  higher  price  tlian  the  contract  article.  Held 
further^  that  the  Government  could  not  recover  the  difference  of  the 
cost  from  the  contractor. 

(Comp.  Geo.  E.  Downey,  Jan.  19,  1914.) 


DAMAGES:    Repairs    of    barge    under    verbal    agreement;    owner    making 
repairs;  appropriation." 

The  Government  engaged  a  barge  from  a  private  comj^any  to  sup- 
ply it  with  coal  at  a  certain  lock  on  the  Ohio  River  upon  the  express 
agreement  that  it  was  to  be  returned  in  as  good  condition  as  when 
i-eceived.  but  no  written  agreement  was  entered  into.  The  l)arge 
was  badly  damaged  in  the  course  of  bringing  it  through  shalloAV 
water. 

Held,  that  it  was  the  right  of  the  Government  to  have  made  the 
necessary  repairs,  but  that  as  it  waived  this  right  and  permitted  the 
oAvner  to  do  so,  the  latter  should  be  regarded  as  the  agent  of  the 
Government  for  the  purpose  of  making  such  repairs  and  that  the 
Government  Avas  liable  for  the  reasonable  cost  of  such  repairs  as 
Avere  made  necessary  by  any  damage  done  to  the  barge  Avhile  in  said 
service.  Held  further^  that  the  appropriation  for  the  Avork  in  hand 
Avas  available  for  the  payment  of  said  claim  if  otherAvise  correct. 

(Comp.  Geo.  E.  DoAvney,  Dec.  15,  1913.) 


EMPLOYEE:  Paid  from  lumiJ-sum  appropriation;  increase  of  efficiency. 

ITpon  submission  of  certain  questions  by  the  Attorney  General — 

Ileld^  that  an  increase  in  an  employee's  efficiency  is  not  sufficient 
to  Avarrant  an  increase  in  his  salary  payable  from  a  lump-sum  appro- 
priation unless  accompanied  Avith  a  substantial  change  in  the  char- 
acter of  the  service  to  be  rendered. 

Held  further^  that  Avhere  the  compensation  paid  from  a  lump-sum 
appropriation  to  the  incumbent  of  a  given  position  during  a  pro- 
ceding  fiscal  year  was  less,  because  of  inexperience  or  incapacity, 
than  that  paid  in  other  like  positions  for  the  efficient  performance 
of  tlie  same  or  similar  services,  a  new  employee  appointed  to  tlie  posi- 
tion who  discharges  its  duties  efficiently  may  be  paid  a  rate  of  com- 
]>ensation  Avhich  does  not  exceed  the  rate  paid  in  other  like  positions 
for  the  same  or  similar  services  durina'  the  preceding  fiscal  vear. 

(Comp.  Geo.  E.  Downey,  Aug.  21,  1913,  20  Comp.  Dec,  131.) 


FORAGE:   Mount  not  complying  with  regulations. 

A   major   of   Infantry   claimed   reimbursement    for   amounts   ex- 
pended by  him  for  forage  and  straAv  and  for  shoeing  his  privately 

9366S°— 17 22 


338        DIGEST    OF    0PIXI0X5    OF    THE    JUDGE    ADVOCATE    GEXERAL. 

owned  mount,  kept  and  used  by  him  in  the  military  service.  The 
claim  had  been  disallowed  because  it  was  held  by  the  ^Vnl•  Depart- 
ment that  the  animal  was  not  a  suitaljle  mount.  It  appears  that  tlie 
lnjrse  was  2  inehe.-,  below  the  height  prescribed  by  Army  Eegulations. 

Held,  that  in  this  case  there  v.'as  nothing  to  show  that  the  oMcer 
v:as  not  mounted  in  a  manner  which  enabled  him  to  suitably  perform 
his  military  duties,  and  reimbiirsernent  should  be  allosved 

(Comp.  (jreo.  E.  Downey.  Jan.  30.  1913.) 


GSATUITY:  On  death  of  soldier;  designation  of  beneficiary  by  will. 

A  private  soldier  died  in  service  from  di.sease  not  the  rej:ult  of 
his  own  misconduct.  The  records  of  his  company  disclosed  that 
he  had  designated  a  beneficiarv  for  the  six-months  gratuitv  pav- 
able  under  the  act  of  May  11."  1908  (35  Stat..  108 K  but  failed  to 
show  the  name  of  the  beneficiary,  and  it  did  not  appear  that  the 
soldier  was  survived  by  a  widow.  The  ia>t  will  of  the  soldier  j)r(!- 
vided :  "  It  is  my  desire  that  all  my  belongings,  both  deposits  and 
otherwise,  go  to  my  mother."  but  did  not  give  her  name  and  address. 

Held,  that  if  upon  investigation  the  designation  slip  could  not  be 
found  or  direct  evidence  as  to  the  person  designated  could  not  be 
produced,  the  will  should  be  taken  as  suthcient  evidence  that  the 
per.son  designated  by  him  was  his  nu'ther.  and  the  six-months"  gra- 
tuity might  be  paid  to  her. 

(Comp.  Geo.  E.  Downey.  Jan.  3.  1911.) 


KEAT  AND  LIGHT:  Allowance  to  Navy  officers  on  temporary  duty. 

Two  Xavy  officers  v.-ere  ordered  away  from  their  permanent  station 
to  temporary  duty  at  Newport,  R.  I.:  one  gave  up  his  residence  at 
hi>  permanent  station,  and  the  otjier  temporarily  closed  his  house 
thereat. 

Held,  that  the  quarters  which  the  officer's  duty  makes  it  necessary 
for  him  to  occupy  are  those  which  the  law  contemplates  shall  be 
heated  and  lighted  at  Government  exj->ense.  and  if  these  officers  gave 
up  their  residences  at  their  permanent  post  or  closed  the  same  so 
that  they  would  not  be  occupied  during  such  period  of  temporary 
absence  and  so  that  no  heat  or  light  wculd  be  furnished  by  the  Gov- 
ernment for  use  therein,  they  would  be  entitled  to  heat  and  light 
allowances  for  quarters  actually  occu[)ie<.i  !)y  them  at  their  posts  of 
temporarv  dutv. 

(Asst.  Comp.  Vr.  ^\.  Warwick,  Aug.  4.  1913.  20  Comp.  Dec,  67.) 


HEAT    AND    LIGHT:    Allowance    to    Navy    officers    on    leave;    number    of 
rooms. 

During  the  month  of  June.  1913.  a  naval  constructor  was  on  duty 
at  a  shore  station  where  he  occupied  quarters  other  than  public,  no 
public  quarters  being  available  for  his  use.  He  was  on  leave  a 
portion  of  this  time.  He  certified  that  during  the  month  he  occu- 
pied quarters  at  an  inn.  and  that  there  were  no  means  by  which  the 
quantity  of  heat  and  light  consumed  within  the  limits  of  his  apart- 
ments could  be  definitelv  ascertained. 


DIGEST    OP    OPIXIOXS    OF    THE    JUDGE   ADVOCATE   GENERAL.       339 

IIel(L  that  \vhere  an  officer  occupies  quarters  other  than  public  the 
fuel  cr  ilhuninatina:  !-uj)plios  for  which  can  not  be  measured,  he  is 
entitled  to  not  more  than  tlie  allowances  prescribed  in  the  re«nila- 
tions  for  the  number  of  rooms  actually  occupied;  that  the  officer's 
certificate  as  to  the  number  of  rooms  actually  occupied  by  him,  if 
sufficiently  specific,  will  ordinarily  be  accepted  by  the  accounting 
officers  as  surficient  evidence  of  that  fact,  but  it  is  not  conclusive,  and 
in  an}'  case  the  accounting  officers  may  require  other  evidence:  that 
such  certificate  should  shov*-  the  number  of  rooms  actually  and  ex- 
clusively occupied  as  his  quarters  and  that  the  number  does  not  in- 
clude bath  rooms,  store  rooms,  or  r(K)ms  used  in  common  with  otiier 
guests  or  tenants,  such  as  public  dining  rooms,  parlor.-,,  kitchens, 
halls,  etc.  Held  further^  that  if  the  officer's  (quarters  are  actually 
occuj^ied  by  his  family  or  by  persons  dependent  upon  him  for  sup- 
port during  his  absence  with  leave,  payment  for  the  heat  and  liglit 
allowance  for  such  period  was  authorized;  otherwise  the  officer  was 
entitled  to  no  heat  and  light  allowance  for  such  period. 

(Asst.  (\)inp.  W.  W.  Warwick,  Aug.  15,  19i:5,  •>()  Comi).  Dec,  83.) 


LIVING  EXPENSES:  Travel  day;  nights  lodging. 

In  measuring  a  travel  day  for  the  purpose  of  computing  daily 
expenses  after  review  of  certain  decisions, 

TIehh  that  the  daily  charge  for  living  expenses  should  commence 
with  tlie  charge  for  breakfast  and  end  with  the  charge  for  lodging 
for  the  whole  of  the  following  night.  The  decision  11)  Comp.  Dec, 
672,  is  modified  acc<vrdingly. 

(Comp.  Geo.  Y,.  Downey,  Jan.  7,  1914.) 


MILEAGE:  Cost  of  transportation  under  orders;  hire  of  automobile. 

An  officer  of  the  Army  was  ordered  to  travel  on  public  business 
to  a  certain  point  and  return.  For  a  portion  of  the  distance  no 
railroad  facilities  were  available  and  he  was  compelled  to  hire  an 
automobile  for  this  part  of  the  journey.  The  mileage  law  of  Jvnie 
12,  190G  {?A  Stat.,  240),  provides  that  officers  of  the  Army  traveling 
under  competent  orders  without  troo})s  shall  be  paid  7  cents  per  mile 
and  no  more;  that  he  may  apply  to  the  Quartermaster's  Department 
of  the  (jovernment  for  a  transportation  request  for  the  journey,  and 
if  the  same  is  furnished  him  it  shall  be  charged  against  his  mileage 
account  at  the  rate  of  3  cents  per  mile  for  whatever  distance  trans- 
portation is  furnished. 

Uel(h  that  said  provisions  w-ere  not  repealed  by  the  api)roi)ria- 
tion  for  transportation  of  the  Army  and  its  supplies  (act  of  ISIar. 
2,  1913,  37  Stat.,  716);  "For  the  purchase,  hire,  operation,  main- 
tenance, and  repair  of  such  harness,  wagons,  carts,  drays,  and  other 
vehicles  as  are  required  fttr  the  transpcntation  of  troops  and  sup- 
plies, and  for  official,  militarv^  and  garrison  puriK>ses,"  and  that  the 
officer  could  not  be  reimbursed  for  the  hire  of  the  automobile. 

(Comp.  Geo.  E.  Downey,  Dec  16,  1913.) 


340        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

MILEAGE:   Naval   service;   G-ovemment  furnishing'  transportation. 

A  chief  warrant  machinist  of  the  Navy,  ^\iiose  rights  to  mileage 
are  the  same  as  those  of  an  ensign,  performed  various  journeys  be- 
tween Newport  News,  Va.,  and  Norfolk,  Va.,  imder  mileage  condi- 
tions, using  a  Government  conveyance.  No  directions  for  the  allow- 
ance of  actual  and  necessary  expenses  were  given.  }■ 

Held^  that  the  fact  that  the  officer  was  permitted  to  use  a  Gov- 
ernment conveyance  for  the  performance  of  this  travel,  the  expense 
of  which  to  the  Government  was  inappreciable  did  not  operate  to 
defeat  his  rights  to  mileage,  and  mileage  was  therefore  allowed  for 
the  travel  at  the  rate  of  8  cents  a  mile. 

(Comp.  Geo.  E.  Downey,  Jan.  20,  1914.) 


QUARTERS:   Commutation  of.  at  temporary  station  while  family  occupies 
q^uarters  at  permanent  station. 

An  officer  was  oidered  from  his  permanent  station  at  Fort  Snell- 
ing.  Minn.,  where  he  and  his  family  occupied  public  quarters,  to 
temporary  recruiting  duty  at  Duluth,  Minn.  He  requested  that 
his  family  be  allowed  to  occupy  his  quarters  during  his  absence  on 
this  duty  or  until  such  time  as  might  be  necessary  for  him  to  ascer- 
tain the  length  of  his  detail  or  make  further  arrangements. 

It  is  understood  that  this  occupancy  will  not  deprive  other  officers 
from  obtaining  these  quarters  when  necessary.  This  request  was 
approved  by  the  commanding  officer.  He  claimed  commutation  of 
quarters  at  his  temporary  station  while  on  duty  there. 

Held.,  That  the  officer  could  not  claim  quarters  or  commutation 
thereof  at  more  than  one  place  at  the  same  time:  that  his  relinquish- 
ment of  quarters  at  his  former  station  must  be  absolute  and  uncon- 
ditional to  entitle  him  to  claim  allowance  at  his  said  temporary  sta- 
tion ;  and  that  if  the  officer  accepts  or  receives  the  benefits  of  Govern- 
ment quarters  in  kind,  either  directly  for  himself  or  indirectly  for 
his  family,  he  is  not  entitled  to  quarters  or  commutation  thereof  at 
any  station  during  the  period  such  benefit  is  accepted,  even  though 
such  benefit  be  given  through  courtesy  of  the  officer  in  charge.  It 
was.  therefore,  held  that  the  officer  in  question  was  not  entitled  to 
commutation  of  quarters  while  on  temporary  duty,  overruling  de- 
cision in  9  Comp.  Dec,  379,  in  which  his  predecessor  had  overruled 
certain  decisions  of  the  Second  Comptroller  which  rulings  are  now 
restored. 

(Comp.  Geo.  E.  Downey,  Jan.  -21.  1914.) 


TRA3SrSP0RTATI0N:   Furnishing-    means    of,    to    an    officer    on    a    mileage 
status. 

The  mileage  act  of  June  12.  190fi  (34  Stat.,  246),  provides  for 
the  payment  of  mileage  at  the  rate  of  7  cents  per  mile  and  no  more 
to  officers  traveling  under  competent  orders  without  troops,  and 
adds  that — 

"  Officers  who  so  desire  may,  upon  application  to  the  Quarter- 
master's Department,  be  furnished  imder  their  orders  transporta- 
tion requests  for  the  entire  journey  by  land,  exclusive  of  sleeping 
and  parlor  car  accommodations,  or  by  water;  and  the  transportation 


DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       341 

SO  furnished  shall,  if  travel  was  performed  under  a  mileage  status, 
be  a  charge  against  the  officer's  mileage  account  to  be  deducted  at 
the  rate  of  ?>  cents  per  mile  by  the  paymaster  paying  the  account." 

Provision  is  also  made  in  the  Army  appropriation  iict  of  March 
2,  1913  (37  Stat.,  710),  for  the  purchase,  hire,  operation,  mainte- 
nance, and  repair  among  other  things  of  v.-agons,  harness,  carts,  and 
other  vehicles  as  refpiired  for  the  transportation  of  troops  and  sup- 
plies and  for  official  and  military  and  garrison  purposes. 

IleM,  That  the  Army  appropriation  act  had  no  reference  to  the 
mileage  law  and  did  not  repeal  or  enlarge  any  of  its  provisions; 
that  the  mileage  law  goes  no  further  than  to  authorize  the  issue  of 
transportation  requests  over  established  lines  of  common  carriers 
by  land  and  w^ater  and  that  it  does  not  authorize  the  hiring  of  an 
automobile  for  travel  of  an  officer  to  a  point  inaccessible  by  com- 
mon carriers. 

(Comp.  Geo.  E.  Downey,  Jan.  12,  1911.) 


TRAVEL   ALLOWANCES:   On    discharge;    soldier   not  furnished   sleeping- 
car  accommodations. 

A  soldier  honorably  discharged  and  entitled  to  travel  allowances 
under  the  act  of  August  24,  1912  (37  Stat.,  576),  was  furnished  by 
the  quartermaster  with  proper  transportation  from  St.  Paul,  Minn., 
to  Houston,  Tex. ;  but  although  sleeping-car  accommodations  were 
demanded  by  the  soldier,  the  same  were  not  furnished  by  the  quar- 
termaster, and  the  soldier  paid  for  them  himself,  to  the  amount  of 
$8.50,  being  the  charge  for  a  lower  berth  of  a  standard  sleeper  for 
said  travel. 

General  Order  No.  54.  of  December  18,  1912,  War  Department, 
provides  that : 

"When  discharged  soldiers  elect  to  take  transportation  in  kind 
and  subsistence  to  place  of  enlistment,  they  will  be  entitled  to  the 
following : 

*  *  *  :;<  ;!:  *  * 

"(?>)  *  *  *  If  tourist  car  not  available,  an  upper  berth  in  a 
standard  sleeper  may  be  furnished  if  practicable:  if  not.  a  lower 
berth.  Xo  sleeping-car  accommodations  will  be  furnished  in  any 
instance  Avhen  a  night's  journey  is  not  involved  and  the  distance 
does  not  exceed  eight  hours'  travel." 

In  tliis  case  it  is  certified  that  tourist-car  acconmiodations  were  not 
available. 

Held,  that  under  present  conditions  of  travel,  when  the  journey 
involves  night  travel,  it  is  recognized  as  a  necessity  by  the  Govern- 
ment to  furnish  to  its  employees  sleeping-car  accommodations  in 
connection  with  transportation;  that  the  soldier  did  not  lose  this 
right  by  accepting  the  transportation  under  protest  and  paying  for 
the  sleeping-car  accommodations  himself;  and  that  he  should  be  reim- 
bursed in  the  amount  which  it  would  have  cost  to  have  j)rovided  an 
upper  berth  in  a  standard  sleeper  in  accordance  with  said  General 
Order  No.  54. 

(Comp.  Geo.  E.  Downey,  Oct.  7,  1913.) 


342        DIGEST    OF    OPINIONS   OF    THE   JUDf.E   ADVOCATE   GENERAL. 

DECISIOIT  OF  THE  COTJET. 

(Digest  prepared  in  the  oflice  of  the  Judue  Advocate  Genend.) 

ACCOUNTi*BILITY:   For  supplies  received;  certificate  of  accounting'  officers 
of  the  Treasury. 

Suit  was  brought  by  the  Government  to  recover  from  the  defend- 
ant the  value  of  certain  Army  supplies  received  by  him  officially  as 
captain  of  a  volunter  company  in  the  Spanish  War.  It  was  alleged 
that  he  had  failed  to  account  for  the  same,  and  that  the  value  thereof 
was  charged  to  him  on  the  certificate  of  the  Quartermaster  General 
of  the  Army.  The  defense  was  a  denial  of  the  indebtedness.  In  the 
suit  the  Government  rested  noon  the  certificate  of  the  arcounting 
officer  of  the  Treasury  Department  to  the  etfect  that  the  balance  sued 
for  had  been  audited  against  the  defendant. 

Held,  That  the  certificate  of  the  appropriate  auditor  of  the  Treas- 
ury Department,  properly  authenticated  in  accordance  with  section 
88(j.  Kevised  Statutes,  showing  propeity  unaccounted  for  by  defend- 
ant, when  introduced  in  evidence  makes  a  prima  fade,  case  for  the 
Government  both  as  to  the  property  and  its  value,  properly  charged 
at  its  cost  to  the  Government,  and  the  burden  rests  on  the  defendant 
to  account  for  it  or  to  prove  any  claimed  deterioration  in  its  value. 

Held  further^  That  in  an  action  by  the  United  States  against  an 
Army  officer  charged  with  failing  to  account  for  supplies  in  his 
custody,  a  claim  that  he  turned  such  supplies  over  to  the  proper 
officer  to  receive  them  is  one  for  a  ''credit."  within  the  meaning 
of  section  951.  Revised  Statutes,  which  provides  that  in  such  suits 
"no  claim  for  a  credit  shall  be  admitted  upon  trial  except  such  as 
appear  to  have  been  presented  to  the  accounting  officers  of  the 
Treasury  for  their  examination,  "  unless  the  failure  to  so  present  it  is 
excused,  etc..  and  where  the  defendant  was  repeatedly  urged  by  such 
officers  during  three  years  to  present  any  matter  which  would  re- 
move the  charge  appearing  against  him  on  the  books,  but  failed  to 
do  so.  evidence  to  establish  such  a  defense  is  not  competent. 

{United  States  v.  Du  Permc,  U.  S.  Dist.  Ct.,  Oct.  15,  1913,  208 
Fed..  895,) 


BULLETIN  8. 
Bufj.ETix  ]  WAK  DKPAIJTMENT, 

No.  8.        J  \VASlil.NGTU.\,  jlai'ch   IJf,  19U. 

The  following  digest  of  opinions  of  the  Judg^  Advocate  General  of 
the  Arm}^  for  the  month  of  Fel)ruarv.  1014,  of  a  decision  of  the 
(\)niptrol]er  of  the  Trea>in_v.  and  of  certain  decisions  of  the  Court 
of  Claims,  together  with  certain  notes  on  the  administration  of  mili- 
tary justice,  is  published  for  the  information  of  the  service  in  general. 
'  I  20942691)— A.  (;.<).] 

Br    OUDKK  OF  TilE  SECRETARY  OF   WaR  : 

LEONARD  WOOD, 

Major  General.)  Chief  of  Staff. 
Official  : 

GEO.  AXDEEWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ABSENCE:   From  duty,  due  to  miscouduct;  stoppage  of  pay. 

The  Army  appropriation  act  of  August  24,  1912  (37  Stat.,  572), 
provides  tlnit  a  soldier  shall  not  receive  pay  from  the  appropriation 
contained  in  the  act  while  he  may  be  absent  from  duty  on  account  of 
disease  ""  resulting  from  his  own  intemperate  use  of  drugs  or  alco- 
holic liquors,  or  other  misconduct."  A  soldier  attempted  suicide  by 
cutting  his  throat  with  a  razor.  Careful  inxestigation  showed  that 
the  act  was  committed  because  of  acute  mehmcholia,  recurrent,  exist- 
ing prior  to  enlistment,  the  result  of  lack  of  success  in  civil  life,  and 
that  there  was  no  family,  love,  criminal,  or  vice  troubles,  and  that 
the  recruit  Avas  incapable  of  an  appreciation  of  his  act. 

IleI(K  that  tlie  case  falls  under  the  o))ini<)n  of  this  office  of  Febru- 
ary 14.  1913  (Bui.  No.  8,  W.  D.,  Mar.  18.  1913,  p.  3),  "that  the  words 
'other  misconduct'  in  the  statute  are  limited  by  the  rule  of  ejusdem 
(jeneriH  to  conduct  of  the  same  geneial  chai-acter  as  that  indicated  by 
the  words  preceding  them,  to  wit,  '  intemperate  use  of  drugs  or  alco- 
holic liquors,"  or  misconduct  consisting  in  the  intempei'ate  or  im- 
proper indulgence  of  natural  or  acquired  appetites;"  and  that  the 
pay  of  the  soldier  during  his  temporary  disability  should  not  be 
W'ithheld. 

(72-210,  J.  A.  G.,  Feb.  18,  1914.) 


APPROPRIATIONS— LUMP-SUM:  Promotion     of    employees    paid     from; 
change  of  duties. 

A  chief  clerk  whose  salary  was  paid  from  a  lump-sum  appropria- 
tion had  been  given,  during  the  current  fiscal  year,  increased  re- 


344        DIGEST    OF    OPINIONS    OF    THE    JUDGE   ADVOCATE    GENEKAL. 

sponsibilities,  and  had  been  called  upon  to  perform  certain  duties  in 
addition  to  and  different  from  those  performed  by  him  during  the 
preceding  fiscal  year.  The  question  submitted  v^^as  whether,  in  view 
of  his  increased  responsibilities  and  duties,  an  increase  of  his  salary 
would  be  in  violation  of  section  4  of  the  legislative,  executive,  and 
judicial  appropriation  act  of  March  4,  1913  (37  Stat.,  790),  which 
amends  section  7  of  the  act  of  August  26,  1912  (37  Stat.,  626),  to 
read  hitei'  alia  as  f ollow^s : 

"  That  no  part  of  any  money  contained  herein  or  hereafter  appropri- 
ated in  lump  sum  shall  be  available  for  the  payment  of  personal  serv- 
ices at  a  rate  of  compensation  in  excess  of  that  paid  for  the  same  or 
similar  services  during  the  preceding  fiscal  year;     *     *     *." 

lielcU  that  as  the  increase  in  the  number  and  change  in  the  char- 
acter of  the  duties  of  said  employee  had  occurred  since  June  30,  1913, 
and  as  certain  of  these  increased  duties  which  he  performed  and 
would  continue  to  perform  had  been  superimposed  on  his  other 
duties  and  were  of  a  different  character,  the  question  as  to  whether 
these  additional  duties  were  of  such  a  different  character  or  were 
sufficiently  important  to  justify  an  increase  in  compensation  was  one 
of  administration,  and  that  if  it  be  decid^^d,  as  an  administrative 
question,  that  the  change  in  the  character  of  the  duties  of  said  em- 
ployee was  such  as  to  make  his  position  substantially  a  new  one  and 
different  from  any  held  during  the  preceding  fiscal  year,  so  that  it 
could  not  be  said  that  he  would  be  paid  more  than  he  was  paid  during 
the  preceding  fiscal  year  for  the  same  or  similar  services,  the  pro- 
posed increase  in  his  compensation  might  lawfullv  be  allowed. 

(80-460.  J.  A.  G.,  Feb.  28.  1914.) 


APPROPHIATIONS:   Transfer  and  promotion   of  clerk  from   statutory  to 
lump-sum. 

The  question  submitted  was  whether  in  view  of  the  prohibition 
contained  in  section  4  of  the  act  of  March  4,  1913  (37  Stat.,  790), 
amending  section  7  of  the  act  of  August  26,  1912  (37  Stat.,  626),  a 
clerk  occupying  a  statutory  position  in  the  office  of  the  Chief  Signal 
Officer  at  $1,200  per  annum  whose  duties  were  those  of  "  stenographer 
and  typewriter  and  assistant  to  the  clerk  in  charge  of  personnel 
records  "  could  be  transferred  to  the  position  of  "  principal  clerk  in 
the  aeronautical  division"  upon  a  lump-sum  pay  roll,  the  latter  posi- 
tipn  having  been  established  by  the  Secretary  of  War  June  27,  1908, 
and  having  been  in  existence  since  that  date.  The  legislation  referred 
to  provides: 

"That  no  part  of  any  money  contained  herein  or  hereafter  ap- 
propriated iw  lump  sum  shall  be  available  for  the  payment  of  per- 
sonal services  at  a  rate  of  compensation  in  excess  of  that  paid  for  the 
same  or  similar  service  during  the  preceding  fiscal  vear;  nor  shall 
any  person  employed  at  a  specific  salary  be  hereafter  transferred  and 
hereafter  paid  from  a  lump-sum  appropriation  a  rate  of  compensa- 
tion greater  than  such  specific  salary     '"     *     '•'." 

Held,  that  said  transfer  and  promotion  would  be  permissible  under 
the  law,  provided  that  the  duties  of  the  new  position  were  essentially 
different  from  those  of  the  employee's  former  position. 

(5-075,  J.  A.  G.,  Feb.  10,  1914.") 


DIGEST    OF   OPINIONS   OF    THE    JUIKiE   ADVOCATE   GENERAL.       345 

CHAPLAINS:   Does  service  on  the  retired  list  constitute  service  for  promo- 
tion? 

The  question  STibmitted  was  Avhether  service  on  the  retired  list 
constitutes  service  Avithin  the  meaning  of  the  act  of  Congress  concern- 
ing the  rank  of  chaplains  approved  April  21.  1904  (33  Stat,  226), 
which  act  provides  under  certain  conditions  for  the  promotion  of 
chaplains  to  the  "grade,  pay.  and  allowances  of  majoi-."' 

Held,  that  service  (n  the  retired  list  did  not  consiitute  ''service'' 
within  the  meaning  of  that  term  as  used  in  said  act. 

(6-229.3.  J.  A.  G.,  Feb.  3,  1914.) 


COMPTHOLLEIl  OF  THE  TREASURY:   Submission  to.  by  tlie  department, 
of  voucher  of  disbursing'  officer  for  advance  decision. 

A  district  engineer  officer  suspended,  on  June  30.  1013.  an  assistant 
engineer,  pending  the  outcome  of  charges  which  he  preferred  against 
him  for  inefficiency.  Upon  investigation,  the  Secretary  of  War 
failed  to  sustain  the  charges,  and  the  officer  was  so  advised  by  the 
Chief  of  Engineers,  and  also  that  the  assistant  engineer  should  be 
restored  to  duty  and  paid  his  authorized  salary  from  the  date  of 
his  suspension  until  his  restoi-ation  to  duty.  The  officer,  befoi-e  mak- 
ing payment,  forwarded  through  the  Chief  of  Engineers  a  vouclier 
for  the  amount  of  salary  du.e  said  assistant  engineer  for  the  period 
named,  with  the  request  that  it  be  submitted  to  the  comptroller  for 
an  advance  decision.  The  Chief  of  Engineers  forwarded  the  same 
Avith  favorable  recommendation. 

The  question  was  raised  as  to  ''■  Avhethcr  there  was  occasion  for  the 
department  to  submit  this  case  to  the  Comptroller  of  the  Treasury." 

Held.,  that  the  circumstances  of  the  case  clearly  brought  it  vv'ithin 
the  decision  of  the  Comptroller  of  May'7,  1006  (12  Conip..  Dec,  653), 
wherein  it  was  held  that  where  a  subo)-dinate  "suspends  a  civilian 
employee  from  duty  without  pay  when  he  is  able  and  w/llinf/  to  per- 
form, his  duties,  and  prefers  charges  against  him,  and  the  Secretary 
of  War  subsequently  declines  to  sustain  the  charges  and  decides  that 
his  suspension  was  not  justified,  said  employee  is  entitled  to  pay  dur- 
ing the  period  of  his  suspension,"  and  also  within  the  decisions  of 
the  Court  of  Claims  in  the  case  of  SfiUmc/  v.  United  States  (41  C. 
Cls.,  61),  and  the  Supreme  Court  of  the  United  States  in  the  case  of 
United  States  v.  Wichersham.  (201  U.  S.,  300).  b(;th  of  which  were 
to  the  same  effect  as  the  above  decision  of  the  Comptroller:  that, 
therefore,  there  would  appear  to  be  no  good  reason  why  the  depart- 
ment should  su.bmit  the  qu.estion  of  the  payment  of  this  voucher  to 
the  Comptroller,  but  that  the  disbursing  officer  had  the  right  under 
the  law  to  submit  the  voucher  to  the  Comptroller  before  paying  the 
same,  if  he  Avas  doiibtful  as  to  the  legality  of  the  proposed  payment. 

(16-211,  J.  A.  a,  Feb.  27,  1914.) 


CONTRACTS:   Agency;  final  payment  on  a  contract  to  person  holding"  power 
of  attorney. 

The  contractor  for  the  extension  of  the  water  distributing  system 
at  West  Point,  X.  Y.,  being  without  funds,  in  consideration  of  an 


346        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

agreement  by  a  third  party  to  secure  for  him  the  necessary  contract 
Ixsnd.  finance  the  project,  pay  him  a  weekly  sahiry  for  supervision, 
and  alh:>w  him  a  certain  per  cent  of  all  balances  in  excess  of  expenses 
at  the  close  of  the  work,  executed  a  power  of  attorney  in  favor  of 
said  party.  Prior  to  final  payment  for  the  work,  which  resulted  in 
loss,  the  contractor  disappeared.  The  work  had  been  completed  and 
accepted,  the  extension  had  been  in  actual  operation,  and  the  part}^ 
holding  the  power  of  attorney  requested  that  he  be  paid  the  balance 
due  under  the  contract. 

Held,  in  view  of  the  provisions  of  sections  3(37  and  37-1-4,  Revised 
Statutes,  whicli,  respecti^■ely.  prohibit  the  assignment  of  contracts  to 
Avhich  the  Ignited  States  is  a  party,  and  require  all  contracts  entered 
into  on  behalf  of  the  United  States  by  the  AVar,  Xavy,  and  Interior 
Departments  to  be  reduced  to  writing  and  signed  at  the  end  thereof 
1)1)  the  coivtrcutimj  parties,  it  could  not  be  shown  that  the  person  in 
whose  name  the  contract  was  made  was  in  fact  the  agent  of  another, 
so  as  to  authorize  payment  to  the  latter  (10  C'omp.,  Dec,  201).  and 
that  payment  could  not  properly  be  made  to  the  applicant  as  princi- 
pal of  the  person  with  whom  the  contract  was  made. 

(76-5-20,  J.  A.  G.,  Feb.  11,  1014.) 


COURTS-MARTIAL:   Effect   upon  proceedings  when   officer  who  preferred 
the  charge  sits  as  a  member  of  the  trial  court. 

In  each  of  three  cases  tried  b\  a  special  court-martial  the  record 
showed  that  the  officer  who  had  signed  the  chaige  sat  as  a  member  of 
the  court  and  participated  in  the  findings  and  sentence.  Informa- 
tion from  a  source  outside  of  the  record  indicated  that  the  officer  who 
had  signed  the  charge  in  each  case  had  been  directed  by  superior 
military  authority  to  prefer  the  charge,  and  that  the  action  of  said 
officer  in  connection  with  the  i)referring  of  the  charge  was  that  of 
a  mere  ministerial  agent  carrying  out  instructions  from  superior  au- 
thority. The  question  i-aised  was  whether  or  not.  under  these  condi- 
tions, the  officer  who  had  signed  the  charges  was  legally  eligible  to 
sit  as  a  member  of  the  court  for  the  trial  of  these  cases,  and  whether 
or  not  his  sitting  as  a  member  of  the  court  served  to  invalidate  the 
proceedings,  in  view  of  the  provision  in  the  act  of  March  2,  1913 
(37  Stat.,  722),  that— 

'•The  commanding  officer  of  a  *  *  '•'  camp  *  *  *  may 
appoint  special  courts-martial  for  his  command:  *  '•'  *  and  no 
otlicer  shall  be  eligible  to  sit  as  a  member  of  such  court  when  he  is 
the  accuser  or  a  witness  for  the  prosecutiim." 

Held,  that  the  officer  who  has  signed  the  charge  in  a  particular 
case  is  j>r'nna  faeie  the  accuser  in  that  case;  that  in  signing  the 
charge  he  has  performed  an  act  that,  in  the  ab.sence  of  a  showing  to 
the  contrary,  must  be  construed  as  having  been  performed  in  the 
capacity  of  an  accuser:  that  pr-iina  faerie  he  is  therefore  ineligible 
to  sit  as  a  meml)er  of  the  trial  court:  that  if,  when  the  charge  is  laid 
l>efore  the  court,  a  showing  be  made  to  the  satisfaction  of  the  court 
that  the  preferring  of  the  charge  by  the  officer  signing  the  same  was 
an  act  purely  ministerial  in  character,  performed  in  pursuance  of 
orders  from  superior  authority  and  representing  no  initiative  or  con- 
viction on  the  part  of  the  officer  so  signing,   the  court   may   find 


Digest  of  opinions  of  the  judge  advocate  general,     347 


thi-t  the  officer  is  not  in  fact  the  accuser  within  the  meaning  of  the 
statute,  and  therefore  not  disqualified  undei-  the  statute  from  sitting 
as  a  nieniber  of  tlie  court  for  tlie  trial  of  tlie  case:  that  in  such  a 
case  the  fact  that  evidence  touching  the  eligibility  of  the  officer  was 
heard  by  the  court,  and  the  finding  arrived  at  by  the  court,  should  be 
made  of  record;  that  after  the  proceedings  have  I>een  concluded,  and 
the  record  has  been  made  up,  evidence  alhiiulc  can  not  be  considered 
for  the  purpose  of  rebutting  the  presumption  that  the  officer  who 
signed  the  charge  is  in  fact  the  accuser  in  the  case;  that  since  in  each 
of  the  cases  in  reference  the  record  showed  that  the  offi.cer  preferring 
the  charge  sat  as  a  member  of  the  trial  court,  and  contained  notliing 
to  indicate  that  said  court,  npon  investigation,  had  arrived  at  a 
finding  that  he  was  not  as  a  matter  of  fact  the  accuser  in  the  case, 
it  must  be  held  that  he  Avas  legally  ineligi!)le  to  sit  as  a  member  of 
the  court  for  the  trial  of  said  cases,  and  that  the  proceedings  in  each 
of  said  cases  must  be  held  to  be  invalid. 
(30-435,  J.  A.  G.,  Feb.  20,  1914.) 


COURTS-MARTIAL:  Effect  upon  proceeding's  when  officer  who  preferred 
the  charge  sits  as  a  member  of  the  court;  subsequent  proceedings  upon 
same  charge. 

A  soldier  was  brought  before  a  general  court-martial  at  Jackson 
Barracks,  La.,  for  trial  upon  the  charge  of  fraudtdent  enlistuient. 
He  entered  a  plea  of  guilty,  was  found  guilty,  and  was  sentenced 
accordingly.  The  record  of  the  proceedings  showed  that  the  officer 
who  preferred  the  charge  sat  as  a  memlier  of  the  court  when  the  case 
came  up  for  trial.  The  reviewing  authority  disapproved  the  pro- 
ceedings, findings,  and  sentence,  for  the  reason  that— 

"The  officer  preferrmg  the  charges  was  permitted  to  sit  as  a  mem- 
ber of  the  eonrt,  in  violation  of  the  act  of  March  2,  1913,"  which 
provides  (37  Stat.,  722)  that— 

"  *  *  *  the  commanding  officer  of  a  territorial  *  *  *  de- 
partment *  *  *  may  appoint  general  courts-martial  whenever 
necessary;  *  *  "  and  no  officer  shall  be  eligil)le  to  sit  as  a  mem- 
ber of  such  court  when  he  is  the  accuser,  or  a  witness  for  the  prose- 
cution." 

Subsequently,  at  Fort  Morgan,  Ala.,  the  soldier  was  brought  before 
a  general  court-uiartial  for  trial  upon  substantially  the  sauie  charge, 
whereupon  he  pleaded  f<^trmer  jeopardy  and  the  one  hundred  and 
second  Article  of  War  in  bar  of  trial.  The-  court  sustained  the  plea 
of  former  jeopardy,  and,  the  record  of  the  proceedings  having  been 
returned  to  the  convening  authority,  the  latter  requested  an  opinion 
as  to  the  validity  of  the  plea  interposed  by  the  accused  and  sustained 
by  the  court. 

Jleld^  that  the  question  to  be  determined  was  whether  or  not  the 
proceedings  at  Jackson  Barracks  were  had  before  a  lawful  court 
and  therefore  constituted  a  laAvful  trial,  in  view  of  the  fact  that 
the  officer  preferring  the  charge  sat  as  a  member  of  the  court  for 
the  trial  of  the  case:  that  the  evident  intent  embodied  in  the  legisla- 
tion of  March  2,  1913.  is  to  disqualify  for  service  as  a  member  of  the 
trial  court  any  officer  who  has  placed  himself  in  the  attitude  of  accus- 
ing the  person  to  be  tried  of  the  offense  for  which  he  is  to  be  tried; 


348        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

that  the  officer  ^Yllo  lias  signed  the  charge  in  a  particuhir  case  is 
prima  facie  the  accuser  in  that  case  and  prima,  facie  ineligible  to  sit 
as  a  member  of  tlie  trial  court ;  that  in  the  alDsence  of  a  showing 
that  the  officer  avIio  signed  the  charge  is  not  in  fact  the  accuser  in 
the  case,  and  of  a  finding  and  ruling  to  that  effect  made  of  record 
in  the  case,  the  fact  that  tlie  officer  whose  name  is  signed  to  the  charge 
sat  as  a  member  of  the  court  must  be  regarded  as  invalidating  the 
proceedings:  that  if  the  record  in  the  case  shows  that  the  officer  who 
signed  the  charge  sat  as  a  member  of  the  trial  court  and  there  is 
nothing  in  the  record  to  disturb  the  presumption  that  he  is  in  fact 
the  accuser,  the  record  must  be  construed  as  showing  that  the  accuser, 
within  the  meaning  of  the  act  of  March  2, 1913.  sat  as  a  member  of  the 
court,  and  the  proceedings  must  be  held  invalid;  that  inasmuch  as 
the  record  of  the  proceedings  at  Jackson  Barracks  showed  that  an 
officer  who  sat  as  a  member  of  the  court  had  sigiied  the  charge 
before  that  court  for  trial  and  was  therefore  prima  facie-  the  accuser 
in  the  case,  and  as  there  was  no  showing  and  finding  of  record  that 
he  was  not  in  fact  the  accuser,  the  court  at  Jackson  Barracks  was 
not  lawfully  constituted  for  the  trial  of  tliat  case,  and  its  proceedings 
were  therefore  null  and  void;  that  the  action  of  the  reviewing  au- 
thority upon  the  proceedings  had  at  Jackson  Barracks  was  in  legal 
effect  a  declaration  of  nullity,  and,  lacing  warranted  in  law,  is  binding 
upon  the  court  at  Fort  Morgan,  to  Avhich  the  pending  charge  against 
the  accused  was  referred  for  trial ;  that  not  having  been  legally  tried 
heretofore  upon  the  charge  now  brought  against  him  the  accused  may 
be  required  to  answer  to  said  charge:  and  that  the  convening  au- 
thority may  reverse  the  ruling  of  ihe  trial  court  in  respect  of  the  plea 
of  former  jeopardy  and  remand  the  case  to  the  trial  court  for  further 
proceedings. 

(30-453.21.  J.  A.  G.,  Feb.  28,  1914.) 


HEAT  AND  LIGHT:   Issue  of  allowance  of,  to  servant  of  officer  absent  on 
temporary  duty. 

The  question  was  submitted  as  to  whether  a  servant  left  in  charge 
of  an  officer's  quarters  during  his  absence  on  temporary  duty  could 
be  considered  as  a  part  of  the  officer's  family  so  that  the  officer's  fuel 
and  light  allowance  could  be  issued  to  said  servant. 

HeJd^  that  the  term  "  family  "  is  one  which  may  have  a  well-defined 
and  restricted  or  a  broad  and  comprehensive  meaning  according  to 
the  connection  in  which  it  is  used,  but  that  unless  the  context  mani- 
fests a  different  intention  the  word  "  family  "  is  usually  construed  in 
its  primary  sense  as  signifying  "  the  collective  body  of  persons  living 
in  one  house,  or  under  one  head  or  manager,  or  one  domestic  govern- 
ment" (19  Cyc,  450-453)  ;  and  that  in  the  case  imder  consideration, 
as  the  quarters  were  occupied  only  by  a  paid  caretaker  who  had  been 
a  servant  in  the  officer's  family,  the  occupancy  by  such  caretaker  could 
not  be  considered  as  an  occupancy  by  the  officer's  family,  the  occu- 
pancy contemplated  by  the  regulations  being  an  actual  and  not  a 
constructive  occupancy.  Field  further^  that  such  paid  caretaker 
could  not  be  regarded  as  coming  under  the  term  "  family  "  as  used  in 
paragraph  1039,  Army  Regulations,  1913,  Avhich  provides  that: 

"  Fuel  will  only  be  issued  or  sold  to  an  officer  upon  his  certificate 
that  it  is  for  his  personal  or  family  use;     *     *     *." 
(72-315,  J.  A.  G.,  Feb.  19,  1914.) 


DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE    GENERAL.       340 

HEAT  AND  LIGHT:  Officer  on  temporary  duty,  to  whom  fuel  and  light 
were  issued,  not  entitled  to  draw  fuel  and  light  at  his  permanent  sta- 
tion for  the  same  period,  even  though  his  total  allowance  be  not  ex- 
ceeded. 

An  officer  on  temporary  duty  at  Galveston,  Tex.,  occupied  a  house 
at  his  temporary  station  from  July  1  to  December  31,  1913,  for  which 
he  drew  fuel  from  the  depot  (juartermaster  at  (lalveston.  During 
the  same  period  a  paid  servant  occupied  the  oiiicer's  quarters  at  Fort 
IRiley,  Ivans.,  his  permanent  station,  as  a  caretaker,  and  was  supplied 
Avitli  fuel  and  light  tlierefor  by  th.e  quartermaster  at  Fort  Kiley.  The 
question  submitted  VNas  wlietfier  the  officer  should  be  required  to  pay 
for  the  fuel  and  light  furnished  at  Fort  Riley,  provided  his  total 
allowance  of  fuel  from  July  1,  1913,  to  June  30,  1914,  was  not  ex- 
ceeded. 

Held,  that  the  issue  of  fuel  at  Fort  Riley  for  any  part  of  the 
period  from  Jtdy  1,  1913,  to  December  31.  1013.  was  unauthorized, 
under  the  decision  of  the  Assistant  Comptroller  dated  February  8,. 
1912  (18  Comp.  Dec,  592),  in  which  it  was  held: 

"  When  the  quarters  actually  occupied  by  an  Army  officer  are 
heated  at  the  expense  of  the  United  States  he  is  not  entitled  to  have 
any  additional  fuel  issued  to  liimself  or  to  his  famihj  at  the  expense 
of  the  United  States,  riotwithstanding  the  fact  that  he  may  not  have 
occupied  the  full  number  of  rooms  to  which  his  rank  entitled  him  or 
that  the  quantity  of  fuel  used  to  heat  the  rooms  irhuh  he  occupied  as 
quarters  may  have  heen  less  than  the  quantity  v:hieh  the  regulations 
prescribed  as  the  maxima m  quantity  for  the  number  of  rooms  which 
he  occupied.'^'' 

(72-315,  J.  A.  G.,  Feb.  24,  1914.) 


PATENT  RIGHTS:   Bepairs  to  engine  protected  by. 

An  engine  in  a  Goveinment  power  plant  protected  by  certain  pat- 
ent rights  had  been  wrecked  and  the  question  was  raised  in  connec- 
tion with  repairing  the  same  as  to  whether  there  Avas  any  legal  reason 
Avhy  the  contract  for  repairs  thereto  should  not  be  awarded  to  the 
lowest  bidder,  said  lowest  bidder  being  neither  the  owner  of  said 
])atent  rights  nor  possessing  any  interest  therein. 

11  eld ^  that  it  is  well  settred  that  the  purcliaser  of  a  patented  ma- 
chine has  the  right  to  u.se  it  until  it  is  woin  out  and  may  repair  it  or 
replace  worn-out  parts,  provided  he  does  not  infringe  some  other 
patent  in  so  doing:  and  that^  therefore,  there  could  be  no  questioii  of 
the  right  of  the  Government  to  have  the  engine  in  question  repaired 
by  any  contractor  to  whom  it  might  elect  to  award  the  work. 
'  (76-125,  J.  A.  G.,  Feb.  5,  1914.^) 


;R,ESTOIvATION   to   duty:   Of  general  prisoner  serving   sentence   of  con- 
finement at  the  United  States  Military  Prison,  Fort  Leavenworth,  Kans. 

A  general  prisoner  who  had  theretofore  been  dishonorably  dis- 
chaiged  the  service  of  tlie  Ignited  States  and  was  serving  a  sentence 
of  coniinement  at  the  United  States  Military  Prison,  Fort  Leaven- 
worth, Kans.,  pursuant  to  the  sentence  of  a  general  court-martial, 
applied  for  restoration  to  duty  to  complete  the  enlistment  from  which 
he  had  been  dishonorably  discharged  pursuant  to  such  sentence. 


350       DR.ESI    OF    OPINIOXS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

Section  1352  of  the  Revised  Statutes,  relating  to  the  United  States 
Military  Prison  and  persons  conhned  therein,  reads  as  follows: 

*"  The  commandant  shall  take  note  and  riiake  record  of  the  good 
conduct  of  the  convicts,  and  shall  shorten  the  daily  time  of  hard  labor 
for  those  who,  by  their  obedience,  honesty,  industry,  or  general  good 
conduct,  earn  suVh  favor.-.;  and  the  Secretary  of  t^'ar  is  authorized 
and  directed  to  remit,  in  part,  the  sentences  of  such  convicts,  ami  to 
Sfive  them  an  honorable  restoration  to  dutv  in  case  the  same  is 
merited."' 

Held,  that  mider  the  foregoing  statute  the  Secretary  of  War  had 
the  power  to  give  said  general  prisoner  an  hcaiorable  restoration  to 
duty,  and  that  he  should  do  so  in  case  it  was  merited:  and  that  such 
honorable  rest(!ration  did  not  mean  a  new  enlistment,  but  did  mean  a 
revival  of  the  old  enlistment  and  tlie  reinstatement  of  the  delinquent 
in  it  at  the  point  where  he  quitted  it  in  di.-honor. 

(80-462,  J.  A.  G.,  Feb.  25.  1914.) 


TRANSPORT ATIOiST:  Excess  bagg-ag-e;  can  an  officer  who  has  been  fur- 
nished with  transportation  of  excess  baggage  be  legally  required  to 
remit  the  cost  of  the  same? 

An  officer  was  crdered  to  proceed  on  duty  without  troops  from 
Fort  Douglas.  Utah,  to  Washington,  D.  C.  Upon  his  application 
transportation  of  three  hundred  pounds  of  excess  baggage  in  connec- 
tion with  said  travel  was  furnished  him  by  the  depot  quartermaster 
at  St.  Louis,  Mo.,  from  Kansas  City,  Mo.,  to  destination.  In  view 
of  the  decisions  of  the  Comptrollei'  of  the  Treasury,  ccmstruing  the 
laws  authorizing  payment  of  mileage  and  the  transportation  of  bag- 
gage of  officers  traveling  on  a  mileage  status,  that  they  must  bear  the 
expense  of  the  transportation  of  their  excess  baggage  from  their 
mileage  allowance  in  like  manner  as  they  pay  therefrom  the  cost  of 
their  transportation  and  (sf  their  parlor  and  sleeping  car  fares,  and 
that  any  payment  of  the  same  from  public  funds  would  be  unlawful, 
said  depot  quartermaster  requested  the  officer  to  remit  to  him  the  co<t 
of  the  transportation  of  his  excess  baggage  in  order  that  he  might 
make  settlemeut  with  the  carrier  therefoi-.  Tliis  he  refused  to  do 
until  so  ordered  by  direction  of  the  Secretary  of  War.  He  thereupon 
transmitted  the  amount  through  The  Adjutant  General  of  the  Army, 
with  the  request  that  before  the  same  should  be  forwarded  to  said 
depot  quartermaster  an  opinion  be  obtained  from  the  Judge  Advo- 
cate General  as  to  wdiether  he  could  legally  be  ordered  to  remit  this 
money  in  the  maunei-  indicated,  as  he  was  unable  to  find  any  law, 
decision,  or  regulation  in  accordance  with  which  an  officer  could  be 
ordered  to  remit  money  under  such  circumstances. 

Held,  that  as  the  shipment  was  made  by  the  quartermaster  upon 
the  officer's  applicaticn,  and  as  under  the  law  as  construed  by  the 
Comptroller  payment  therefor  can  not  lawfully  !)e  made  from  any 
Government  apin-opriation  but  is  a  charge  against  the  officers'  mile- 
age allowance,  the  quartermaster  must  be  held  to  have  acted  as  the 
agent  of  the  officer  and  not  of  the  Government  in  furnishing  the 
transportation,  and  therefore  the  order  for  the  remittance  c>f  the  cost 
of  the  shipment  was  pro])erlv  and  lawfully  issued. 

(9JU232.1,  J.  A.  G..  Feb.  20,  1914.) 


DIGEST   OF    OPIXIOXS   OF    THE    JUDGE    ADVOCATE   GENERAL.       351 

DECISION  or  THE  COMPTROLLER  OF  THE  TREASURY. 
(Digest  prepared  iu  the  Office  of  the  Judge  Advocate  General.) 

THAI^TSPOIITATION:   Of  excess  baggage  with  change  of  station  aFiowance; 
cost  of,  not  subject  to  land-grant  deductions. 

A  railroad  company  appealed  from  a  disallovvance  \)j  the  Auditor 
for  the  War  Department  of  its  claim  for  transportation  of  excess  hag- 
gage  of  certain  ofiicers  shipped  by  quartermasters  with  their  change 
of  station  allowances,  said  chum  for  additional  compensation  being  on 
account  of  land-grant  deductions  made  by  disbursing  officers  in  paying 
for  the  transpoi'tation  of  such  excess  baggage.  The  railroad  com])any 
contended  that  it  was  entitled  to  payment  for  the  transportation  of 
such  excess  baggage  at  full  ta ri if  rates  Avithout  land-gi-ant  de(hictions. 
The  Comptroller,  while  affirming  the  disallowance  by  the  Auditor  on 
the  ground  that  the  apj>ropriations  for  "  Transj^jortation  of  the  Army 
and  its  supplies  "'are  not  available  tonudce  an}' pa\'ments  fortransporta- 
tion  over  the  land-grant  roads  specilied  in  said  acts  in  excess  of  50 
per  cent  of  tariff  rates  and  holding  that  any  claims  of  this  character 
should  be  made  directly  upon  the  officers  who  were  furnished  with  the 
transportation,  overruled  his  prior  decisions  of  December  '20.  1910  (17 
Comp.  Dec,  428),  and  of  June  26,  1911  (17  Comp.  Dec,  997),  which 
authorized  land-grant  deductions  from  the  transportation  of  such  ex- 
cess baggage  and  reimbursement  hy  the  officers  to  wliom  the  transpor- 
tation was  furnished  on  the  basis  of  the  net  rates  thus  determined. 

In  overruling  said  former  decisions  upon  the  application  of  the 
land-grant  laws  to  the  transportation  of  excess  baggage,  held,  that 
any  excess  baggage  over  the  change  of  station  allowance  authorized  by 
Army  Regulations  can  in  no  sense  be  held  to  be  Go\erinnent  pro[)erty 
or  property  which  the  Government  is  pledged  to  transport,  and  a  rail- 
road compan}^  can  not  be  required  to  transport  it  as  public  property; 
that  the  provisions  in  the  appropriation  acts  that  payments  to  land- 
grant  railroads  shall  not  be  in  excess  of  50  per  cent  of  the  tariff  rate:-? 
applies  only  to  moneys  authorized  to  be  expended  therefrom  and  pay- 
able by  the  Government  for  service  rendered  to  the  Government  and 
not  to  the  transportation  of  an  officer's  baggage,  for  which  the  law 
requires  that  reimbursi  ment  shall  be  made  by  him;  and  that,  there- 
fore, the  excess  over  tlie  regulation  change  of  station  allowance  of 
baggage  of  an  officer  of  the  Army  autliorized  to  be  shipped  with  such 
allowance  is  not  subject  to  land-grant  deductions,  but  should  be  paid 
for  and  reimbursement  collected  at  the  tariff  rates  applicable  on  said 
excess  for  the  shipment  as  made. 

(Comp.  Geo.  E.  Downey,  Feb.  21.  1914.) 


DECISIONS  OF  THE  COURT  OF  CLAIMS. 
(Digests  prepared  in  the  ofllce  of  tlie  Judge  Advocate  (leueral.) 

ARMY  REGULATIONS:   Changes  in.     Board,  lodging,  etc..  of  civilian  em- 
ployees on  tempoi-ary  duty. 

A  clerk  in  the  Subsistence  Department,  Fort  Riley,  Kans.,  was 
ordered  on  temijoraiv  dutv  at  San  Antonio,  Tex.,  where  he  served 
from  March  9  to  July  20,  1911.  On  March  28,  1911,  the  Secretary  of 
AVai'  approved  the  recojnmendation  of  the  Quartermaster  General 


352        DIGEST   OF   OPIXIOXS   OF    THE    JUDGE   ADVOCATE    GENERAL. 

that  thereafter  the  alloAvance  iin(ler  Army  EeguLitions  of  not  to 
exceed  $1.50  per  day  for  board,  lodging,  etc.,  to  all  civilian  employees 
of  the  War  Department  assigned  to  temporary  duty  and  paid  from 
the  appropriations  for  the  Quartermaster's  Department,  be  limited 
to  the  first  30  days  on  such  duty.  Said  clerk  was  accordingly  paid 
the  cost  of  his  meals,  lodgings,  etc.,  for  the  first  30  days  only.  He 
filed  a  claim  for  reimbursement  under  Army  Regulations  for  the 
balance  of  the  time  he  was  on  temporary  duty,  contending  that  the 
Secretary  of  War  acted  beyond  the  scope  of  his  legal  authority  in 
attempting  to  chansre  the  Army  Regulations  prescribing  said  allow- 
ances of  civilian  employees,  on  the  ground  that  the  issuing  or  modify- 
ing such  regidations  must  be  distinctively  the  personal  act  or  order  of 
the  President,  wdiich  could  not  be  delegated  to  a  subordinate. 

Ileld^  that  it  is  well  settled  b}^  both  the  decisions  of  the  Court  of 
Claims  and  the  Supreme  Court  that  the  President  may  legally  act 
through  the  head  of  a  department,  that  the  fixing  of  30  days  as  the 
limit  of  temporary  duty  in  this  case  was  wholly  within  the  discretion 
of  the  Secretary  of  War,  and  that  the  plaintifi'  had  no  legal  claim 
against  the  United  States  for  reimbursement  for  the  cost  of  his  board 
and  lodgings  for  any  time  in  excess  thereof. 

{Maxioell  v.  United  States,  C.  Cls.  Xo.  31-24G,  Feb.  9,  1914.) 


PAYMASTERS'  CLEUKS  OF  THE  NAVY:   Officers  v/ithin  the  meaning  of 
the  mileage  laws. 

A  paj-master 's  clerk  of  the  Xavy  Avas  ordered  to  proceed  from 
Washington,  D.  C,  to  his  home  and  to  consider  his  appointment 
revoked  upon  his  arrival  thereat.  He  was  reimbursed  for  his  travel- 
ing exj^enses  on  said  journey.  He  filed  a  claim  for  the  difference 
between  his  traveling  expenses  and  mileage  at  8  cents  per  mile,  con- 
tending that  he  was  an  officer  of  the  Navy,  and  as  such  was  entitled 
to  mileage  instead  of  traveling  expenses  wdien  traveling  under  orders. 

Held,  that  as  the  Naval  Regulations  require  that  a  paymaster's 
clerk  sliall  be  appointed  hy  the  Secretary  of  the  Navy,  he  is  an  officer 
of  the  Navy  within  the  meaning  of  the  decision  of  the  Supreme  Court 
in  the  case  of  the  United  States  i'.  Mouat  (124  U.  S.,  303),  wherein 
it  was  held  that  an  appointment  by  the  head  of  a  department  consti- 
tutes the  person  appointed  an  officer  of  the  United  States,  and  that 
being  an  officer  of  the  Navy  he  is  entitled  to  the  benefit  of  the  mileage 
laws. 

{Kaiser  v.  United  States,  C.  Cls.  No.  31S88,  Feb.  9,  1914.) 


l^OTES   OSr   THE   ADMINISTRATION    OE    MILITAEY    JUSTICE. 

1.  On  February  14.  1914.  the  Secretary  of  War  had  the  following 
instructions  communicated  to  each  officer  exercising  general  court- 
martial  jurisdiction : 

[a)  "  In  each  case  tried  by  general  court-martial  in  which  a  peni- 
tentiary is  designated  as  the  place  of  confinement  of  the  person  tried, 
the  record  of  trial,  when  forwarded  to  the  Judge  Advocate  General 
of  the  Army,  will  be  accompanied  by  a  signed  statement  indicating 
the  law  or  laws  authorizing  the  confinement  in  a  penitentiary  of  the 
person  sentenced. 


DIGEST   OF   OPINIONS   OF    THE    .JUDGE   ADVOCATE   GENERAL.       353 

{h)  "In  each  case  tried  by  general  court-martial  in  which  the 
confinement  of  the  offender  in  a  penitentiary  is  authorized  by  law, 
but  in  which  a  phice  other  than  a  penitentiary  is  designated  as  the 
place  of  confinement,  the  record  of  trial,  when  forwarded  to  the 
Judge  Advocate  General  of  the  Army,  will  be  accompanied  by  a 
signed  statement  indicating  the  law  authorizing  the  confinement  in 
a  penitentiary  of  the  person  sentenced  and  the  reasons,  briefly  ex- 
pressed, for  designating  a  place  other  than  a  penitentiary,  instead 
of  a  penitentiary,  as  the  place  of  confinement  in  the  particular  case. 

(c)  "  If  the  hiw  relied  upon  as  authorizing  confinement  in  a  peni- 
tentiary be  a  Federal  statute  an  accurate  citation  will  be  regarded 
as  suflicient  to  indicate  the  law,  but  if  any  other  law  be  relied  upon 
as  authorizing  confinement  in  a  penitentiary  such  law  will  be  quoted 
in  full  in  the  required  statement." 

2.  In  connection  with  the  desigiiation  of  places  of  confinement  a 
department  commander  was  advised  that  the  demand  for  prison 
labor  at  posts  was  not  deemed  a  sufficient  reason  by  the  War  Depart- 
ment to  warrant  a  departure  from  the  rule  laid  down  in  paragraph 
15,  General  Orders  No.  56,  War  Department,  1013,  and  reiterated 
in  special  instructions  of  December  4,  1913,  in  a  case  in  which  the 
offender  was  legally  and  properly  punishable  by  confinement  in  a 
penitentiary.  It  w^as  further  stated  that  the  success  of  the  effort 
now  being  made  to  reclaim  offenders  convicted  of  purely  militai-y 
offenses,  and  the  feasibility  of  extending  the  scope  of  that  effort  to 
include  offenders  convicted  of  civil  offenses  not  punishable  by  con- 
finement in  a  penitentiary,  must  depend  to  a  considerable  extent 
upon  the  cooperation  of  officers  exercising  general  court-martial 
jurisdiction,  and  the  care  employed  by  them  in  furthering  the  plans 
of  the  War  Department  to  exclude  from  the  military  prisons  all 
offenders  hereafter  convicted  by  general  court-martial  of  offenses 
legally  and  properly  punishable  by  confinement  in  a  penitentiary. 

3.  In  two  cases,  based  on  charges  alleging  the  commission  of  fel- 
onies, the  introduction  by  the  prosecution  of  hearsay  testimony  was 
permitted,  perhaps  in  the  belief  that,  because  the  testimony  consisted 
of  statements  made  to  an  officer  who  was  at  the  time  conducting  an 
official  investigation,  it  formed  art  exception  to  the  heai*say  rule, 
which,  however,  is  not  the  case.  While  there  was  other  evidence 
which,  though  meager,  might  have  been  considered  sufficient  if  the 
court  had  arrived  at  its  findings  from  a  consideration  of  this  alone, 
the  fact  that  hearsay  testimony  might  have  been  the  controlling 
factor  for  the  court's  conclusions,  or  that  the  direct  evidence  might 
not  have  been  considered  sufficient  proof  without  the  hearsay,  in- 
duced this  office  to  recommend  the  remission  of  the  unexecuted  por- 
tions of  the  sentences  in  these  cases.  The  fact  that  counsel  for  the 
accused  failed  to  object  to  the  admission  of  the  testimony  was  not 
considered  a  sufficient  reason  to  refrain  from  this  recommendation. 
The  admission  of  incompetent  testimony  always  embarrasses  the  ad- 
ministration of  justice  and  subjects  it  to  criticism.  It  was  further 
observed  in  these  cases  that  the  reviewing  authority  did  not  remark 
upon  the  improper  admission  of  hearsay  testimony. 

4.  It  has  been  frequently  observed  that  judge  advocates  of  courts 
fail  to  comply  with  the  provision  of  the  Manual  of  Courts-Martial, 

93668°— 17 23 


354        DIGEST   OF    OPINIONS    OF    THE    JUDGE   ADVOCATE   GENERAL. 

page  27,  note  2,  requiring  a  certificate  as  to  disposition  of  the  carbon 
copy  of  the  record;  and  on  the  printed  form,  when  used,  it  often 
occurs  that  the  answer  to  the  question  "Has  copy  been  furnished 
accused  or  sent  to  Judge  Advocate  General?"  is  yes,  which  answer 
does  not  indicate  which  of  the  two  dispositions  was  made  of  the  car- 
bon copy.  When  this  office  is  called  upon  to  furnish  a  copy,  as  pro- 
vided in  the  One  hundred  and  fourteenth  Article  of  War,  to  the 
party  tried  or  his  proper  representative,  the  record  under  such  cir- 
cumstances doas  not  show  affirmatively  whether  the  accused  has  been 
already  furnished  a  copy,  and  it  therefore  devolves  upon  the  depart- 
ment to  furnish  another,  sometimes  at  considerable  expense  and  cost 
of  labor.  Department  headquarters  should  note  these  failures  to 
make  a  proper  entry  and  have  them  corrected  before  forwarding  the 
proceedings  to  the  office  of  the  Judge  Advocate  General. 

5.  A  department  commander  has  forwarded  the  following  obser- 
vation of  one  of  his  officers  as  worthy  of  consideration,  and  it  is 
deemed  important  that  the  practice  to  which  he  adverts  be  corrected : 

{a)  "Attention  is  called  to  the  fact  that  numerous  charges  against 
enlisted  men  for  desertion,  or  cases  involving  desertion,  referred 
to  the  judge  advocate  for  trial  by  general  court-martial,  are  accom- 
panied by  nothing  more  enlightening  than  a  statement  in  effect: 

' can  testify  that  the  accused   did  desert  the  service 

on date.'    Or,  '  I  will  testify  that  the  records  show  that  the 

accused  deserted  the  service  at on date.' 

( 6 )  "  Such  very  condensed,  or  incomplete,  synopses  of  testimony 
expected  are  of  very  little  use  to  the  judge  advocate  in  preparation 
of  his  case,  and  it  is  especially  difficult  where  the  charges  originate 
and  the  witnesses  are  at  places  other  than  place  of  trial,  and  also 
in  cases  to  be  tried  by  deposition,  which  cases  require  considerable 
correspondence  before  the  judge  advocate  can  prepare  intelligent 
interrogatories  and  not  burden  the  record  with  hypothetical  and 
'  stock '  questions." 


BULLETIN  14. 

Bulletin!  WAR  DEPARTMENT, 

No.  1 !.    J  Washington,  April  IJf^  1911^. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  March,  1914,  and  of  certain  decisons 
of  the  Comptroller  of  the  Treasury,  is  published  for  the  information 
of  the  service  in  general. 
[2094269  E— A.  G.  O.] 

By  order  of  the  Secretary  of  War  : 

LEONARD  WOOD, 
Major  General^  Chief  of  Staff. 
Official  : 

GEO.  ANDREWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

CIVILIAN   EMPLOYKES:  Medical   treatment  in  hospital   after   discharge 
from  service;  reimbursement  for  subsistence. 

A  former  civilian  teamster,  while  in  the  service  of  the  Quarter- 
master Department  at  Fort  St.  Michael,  Alaska,  was  severely  injured 
and  taken  to  the  post  hospital  for  treatment.  Before  he  left  the  hos- 
pital he  had  been  discharged  from  the  service,  and  was  destitute  and 
unable  to  pay  his  hospital  expenses  when  he  left  the  hospital. 

Held,.,  that  from  the  regulations  and  the  conditions  affecting  the 
man's  service  as  appeared  from  the  papers  in  the  case,  he  was  entitled 
to  medical  treatment  at  Government  expense  for  his  injury,  and  that 
this  right  continued  for  a  reasonable  time  for  such  treatment,  not- 
withstanding his  relations  with  the  Government  as  an  employee  had 
ceased,  but  that  this  right  did  not  include  treatment  for  chronic  ail- 
ments or  for  an  injury  after  it  had  become  evident  that  the  same  was 
incurable  or  that  the  patient's  condition  could  not  be  improved  by 
further  treatment.  Held  further.,  that  it  was  .proper  to  issue  rations 
at  the  expense  of  the  appropriation  for  the  subsistence  of  the  Army 
to  reimburse  the  hospital  fund  for  the  subsistence  of  the  patient. 

(16-414,  J.  A.  G.,  Mar.  28,  1914.) 


CONTRACTS:   For  supplies;  receiving  bid  after  time  for  opening^  excuses 
for  delay. 

Bids  were  received  for  6,000  trunk  lockers  at  the  Philadelphia,  Pa., 
depot  February  25,  1914.  The  circulars  to  bidders  specified  that  the 
bids  would  be  opened  at  11  a.  m,  on  that  day,  and  that  proposals  re- 

355 


356       DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE    GENERAL. 

ceived  thereafter  would  not  be  considered.  Just  prior  to  the  time  for 
opening  the  bids  a  telephone  message  was  received  requesting  that  the 
opening  be  delayed  until  the  sender  could  arrive  with  his  proposal, 
stating  that  his  car  had  broken  down.  The  request  was  complied 
with  and  bids  were  not  opened  until  11.20  a.  m.  The  delayed  bid  was 
found  to  be  the  lowest. 

Held^  that  Avhile  it  would  be  legal  to  waive  the  irregularity  and 
admit  the  bid,  yet  such  action  was  not  recommended,  in  view  of  the 
terms  of  the  circular  to  bidders  and  the  provisions  of  paragraph  539, 
Army  Regulations,  1913,  which,  after  various  precedents  had  been 
established  for  waiving  delays  in  the  reception  of  bids  where  the 
bidder  was  not  considered  at  fault,  was  amended  so  as  to  recognize 
but  one  gi'ound  for  such  delay — that  is,  where  it  is  clearly  shown 
that  the  nonarrival  on  time  was  due  solely  to  delay  in  the  mails,  for 
which  the  bidder  was  not  responsible. 

(76-251,  J.  A.  G.,  Mar.  7,  1914.) 


CONTRACTS:   Supplemental;  filing  copies  in  Returns  Office;  paragraph  563, 
Army  Regulations,   1913. 

Section  3744  of  the  Revised  Statutes  makes  it  the  duty  of  the 
Secretary  of  War,  inter  alia.,  to  require  contracts  made  under  his 
authority  "  to  be  reduced  to  writing,  and  signed  by  the  contracting 
parties  with  their  names  at  the  end  thereof."  and  also  requires  that 
copies  of  such  contracts  be  filed  in  the  Returns  Office  of  the  Interior 
Department. 

Held^  that  where  a  supplemental  contract  is  made  with  the  same 
formalities  as  are  required  for  the  execution  of  the  original  contract, 
such  supplemental  contract  is  in  effect  a  new  one  modifying  the 
prior  contract,  and  a  copy  thereof  should  be  filed  in  the  Returns 
Office  of  the  Interior  Department  as  required  by  said  section  3744 
and  also  by  paragraph  563,  Army  Regulations,  1913. 

(76-340,  J.  A.  (i.,  Mar.  31,  1914.) 


DESERTERS:   Expense  of  returning  to  their  proper  station;  commutation 
of  subsistence  of  guard. 

Two  deserters  surrendered  themselves  to  the  military  authorities 
at  Tacoma,  Wash.,  and  were  returned  in  charge  of  a  sergeant  to  their 
proper  station  at  the  Presidio,  San  Francisco,  Cal.  The  sergeant 
was  paid  the  commutation  value  of  rations  for  himself  and  the  men. 

Held^  That  the  expense  of  transporting  a  deserter  to  his  proper 
station,  or  to  his  place  of  trial  and  which  should  be  charged  against 
him,  includes  not  only  the  cost  of  transportation  proper  but  also 
the  subsistence  both  of  himself  and  of  his  guard  (Dig.  Op.  J.  A.  G., 
1912,  p.  407  a),  but  that  the  charge  on  account  of  subsistence  of  the 
guard  should  be  limited  to  the  amount  by  which  the  subsistence  or 
commutation  of  subsistence  furnished  him  exceeds  the  cost  of  his 
subsistence  at  his  proper  station. 

(26-423.1,  J.  A.  G.,  Mar.  26,  1914.) 


DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL.       357 

EIGHT-HOUB  LAW:   In   the   District   of   Columbia;   female   employees   of 
the  telegraph  oflBlce,  War  Department. 

The  act  of  February  24,  1914  (Public,  No.  60)  provides— 

"That  no  female  shall  be  employed  in  any  manufacturing,  me- 
chanical or  mercantile  establishment,  laundry,  hotel,  or  restaurant, 
or  telegraph  or  telephone  establishment  or  office  or  by  an  express  or 
transportation  company  in  the  District  of  Columbia  more  than  eight 
hours  in  any  one  day  or  more  than  six  days  or  more  tlian  forty-eight 
hours  in  any  one  week." 

Held.,  that  the  sovereign  authority  of  a  country  is  not  bound  by 
the  words  of  a  statute  unless  named  therein  (36  Cyc,  1172)  ;  that 
the  United  States  was,  therefore,  not  included  within  the  meaning 
of  the  law  and  the  telegraph  office  located  in  the  War  Department 
was  not  a  telegraph  establishment  intended  to  be  covered  by  the 
act;  and  that  female  employees  on  duty  therein  did  not  come  within 
the  statute. 

(32^20,  J.  A.  G.,  Mar.  14,  1914.) 


MILITIA:   Organized,  of  the  District  of  Columbia;  naval  battalion;  retire- 
ment in  the  next  higher  grade. 

Section  20  of  the  act  of  February  18,  1909  (35  Stat.,  631)  for  the 
organization  of  the  Militia  of  the  District  of  Columbia,  provides  for 
the  retirement  of  officers  of  the  National  Guard  of  said  district  upon 
their  own  ai^plication,  and  further  that — 

"An  officer  so  retired  who  at  the  time  of  making  such  application 
has  remained  in  the  same  grade  for  the  continuous  period  of  10 
years  *  *  *  may  be  retired  with  increased  i-ank  of  one  grade  and 
shall,  before  being  so  retired,  receive  from  the  President  of  the 
United  States  the  commission  of  the  new  grade    *    *    *." 

An  officer  of  the  naval  battalion  was  commissioned  ensign  March 
13,  1903,  promoted  to  lieutenant,  junior  gi-ade,  February  25,  1904, 
promoted  to  lieutenant  February  12,  1906,  and  transferred  to  the 
ordnance  department  as  first  lieutenant  with  rank  from  December 
23,  1909.  He  claimed  to  have  served  in  one  grade  since  February 
25,  1904. 

Held,  that  this  officer  counting  back  10  years  from  the  date  of 
his  application  for  retirement  had  served  10  years  in  the  grades  of 
lieutenant,  junior  grade,  and  lieutenant ;  that  these  grades  were 
distinct  in  the  regular  naval  service,  and  had  distinct  assimilated 
grades  in  the  Military  Establishment;  and  that  the  applicant  was 
not  eligible  for  retirement  in  the  next  higher  grade  of  captain,  not 
having  served  continuously  for  10  years  in  the  grade  of  lieutenant 
prior  to  his  application. 

(58-820,  J.  A.  G.,  Mar.  14,  1914.) 


NAVIGABLE  WATERS:  Harbor  and  high- water  lines;  lands  below  high- 
water  line. 

In  connection  with  the  construction  of  Dam  No.  1  on  the  Missis- 
sippi River  at  Minneapolis,  Minn.,  opinion  was  asked  as  to  the 
liability  of  the  United  States  to  pay  for  the  flowage  of  certain  lands 
lying  streamward  from  established  harbor  lines,  or  from  the  natural 


358        DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

high-water  line.  It  appeared  that  by  the  construction  of  this  dam 
the  water  level  would  be  raised  so  as  to  overflow  some  hard  .and 
fast  land  owned  by  private  parties  lying  above  the  high-water  line, 
and  to  submerge  to  a  greater  extent  other  lands  below  said  line 
already  wholly  or  partially  submerged.  The  dam  was  a  navigation 
improvement  undertaken  by  the  Federal  Government  and  authorized 
by  the  act  of  March  3,  1899  (30  Stat.,  1147),  as  modified  by  the  act 
of  June  25,  1910  (36  Stat.,  729). 

Held,  that  a  harbor  line  established  pursuant  to  law  is  simply 
a  line  of  convenience  for  the  regulation  of  the  exercise  of  private 
rights,  is  in  the  nature  of  a  general  permit  for  the  erection  of 
structures  in  aid  of  commerce,  and  is  not  a  line  vesting  any  rights  in 
individuals;  that  if  during  the  progress  of  a  public  navigation  im- 
provement, and  in  consequence  thereof,  land  lying  below  the  high- 
water  line  becomes  more  deeply  submerged  than  before,  the  United 
States  does  not  thereby  become  liable  for  a  violation  of  the  rights 
of  private  property ;  and  that  this  is  so  regardless  of  an  established 
harbor  line ;  but  that  the  rule  does  not  apply  to  lands  above  the  high- 
water  line. 

(62-851,  J.  A.  G.,  Mar.  11,  1914.) 


NAVIGABLE   WATERS:   Title    to    submerged    lands    under;    easement    in 
favor  of  works  of  national  defense. 

1.  Certain  cables  pertaining  to  the  fire  control  of  the  defenses 
protecting  the  eastern  entrance  to  New  York  Harbor  were  laid  for 
a  distance  over  certain  lands  beneath  the  navigable  waters  of  the 
river  at  that  point,  which  lands  had  been  leased  by  the  State  of 
New  York  to  private  parties  for  oyster  culture  purposes.  It  seemed 
to  be  conceded  that,  upon  the  one  hand,,  it  would  be  dangerous  to 
the  operators  using  dredges  in  the  vicinity  of  these  cables,  and 
injurious  to  or  destructive  of  the  harbor-defense  system  upon  the 
other.  Consequently,  it  was  alleged,  the  lessees,  to  their  loss,  had 
abandoned  operations  in  the  immediate  vicinity  of  the  cables.  The 
question  was  submitted  by  the  proper  military  authorities  whether 
the  cables  and  their  accessories  must  be  transferred  from  their  pres- 
ent location  in  order  that  oyster  dredging  in  that  particular  locality 
might  not  be  interfered  with,  it  being  accepted  without  question  that 
dredging  should  not  be  carried  on  within  the  immediate  vicinity  of 
the  cables.  Upon  the  fundamental  question  whether  the  constitutional 
rights  and  duty  of  the  Federal  Government  to  provide  for  the 
common  defense  gave  to  that  Government  such  paramount  rights 
for  that  purpose  over  the  submerged  areas  in  question  as  to  subject 
such  areas,  regardless  of  any  private  property  rights  in  them,  to 
such  use. 

Held,  in  the  affirmative,  that  the  title  to  the  submerged  lands 
beneath  the  navigable  waters  in  question  is  qualified  by  its  subor- 
dination to  such  use  of  them  by  the  Federal  Government  as  may 
be  demanded  by  the  Federal  Government  in  the  exercise  of  its  duty 
to  provide  for  the  common  defense,  and  that  in  that  case  any  loss 
suffered  by  the  State's  lessees  by  reason  of  such  cables  of  such  coast- 
defense  system  was  not  such  as  required  compensation  by  the  United 
States. 


DIGEST   OF   OPINIONS   OP   THE   JUDGE   ADVOCATE   GENERAL.       359 

2.  Inasmuch  as  Congress  had  actually  subjected  the  lands  and 
water  in  question  to  said  use  for  the  purpose  of  national  defense  by 
instituting  said  harbor-defense  system  and  maintaining  it  out  of 
public  moneys  appropriated  for  the  purpose,  and  had  provided  for 
the  i)r()tection  of  such  systems  by  a  penal  statute  providing  that — 

"  Whoever  shall  willfully  trespass  upon,  injure,  or  destroy  any  of 
the  works  or  property  or  material  of  any  submarine  mine  or  torpedo, 
or  fortification  or  harbor-defense  system  owned  or  constructed  or  in 
prof;ess  of  construction  by  the  United  States,  or  shall  willfully  inter- 
fere with  the  operation  or  use  of  any  such  submarine  mine,  torpedo, 
fortification,  or  harbor-defense  system,  *  *  *."  (Sec.  44,  Penal 
Code.),  should  be  punished  wnth  fine  and  imprisonment.  Advised^ 
that  where  oyster-dredging  operations  are  carried  on  in  the  immedi- 
ate vicinity  of  harbor-defense  cables  or  any  other  aids  to  national 
defense  protected  by  the  above  quoted  statute  and  are  so  conducted 
as  to  trespass  upon,  injure,  or  destroy  any  of  such  works  of  defense, 
it  would  be  the  duty  of  the  department  to  see  that  proceedings 
were  instituted  under  that  statute  to  punish  the  parties  for  the  offense 
so  committed. 

(62-113,  J.  A.  G.,  Mar.  19,  1914.) 


NEWSPAPERS  AND  PERIODICALS:  For  use  of  the  troops  on  duty  on  the 
Mexican  border. 

The  question  was  presented  as  to  whether  newspapers  and  periodi- 
cals could  lawfully  be  provided  by  the  Quartermaster  Corps  for 
troops  on  duty  on  the  Mexican  border.  The  Army  appropriation 
act  of  March  2,  1913  (37  Stat.,  712),  appropriates— 
"  For  the  necessary  furniture,  textbooks,  paper,  and  equipment  for 
the  post  schools  and  libraries." 

Heldy  that  said  provision  in  the  Army  appropriation  act  was  limited 
by  its  terms  to  post  schools  and  libraries,  and  that  there  being  no 
other  appropriation  available  for  the  purpose,  no  -legal  authority 
existed  under  which  newspapers  and  periodicals  could  be  purchased 
for  the  use  of  the  troops  in  the  situation  indicated. 

(5-243,  J.  A.  G.,  Mar.  13,  1914.) 


PAY  CLERKS:   Service  with  troops. 

A  paymaster's  clerk  of  the  Quartermaster's  Department  before  its 
absorption  into  the  Quartermaster  Corps,  during  the  period  from 
April  19  to  November  10,  1912,  was  on  duty  at  Fort  Leavenworth, 
Kans.,  as  clerk  to  a  paymaster  who  was  assigned  to  duty  at  that 
post  and  whose  only  duties  were  connected  with  the  payment  of  the 
troops  thereat.  The  paymaster's  clerk  presented  his  claim  to  the  ac- 
counting officers  of  the  Treasury  Department  for  reimbursement  for 
the  amount  expended  by  him  for  the  hire  of  quarters  or  for  commu- 
tation of  quarters  during  such  period. 

lleld^  that  the  paymaster  was  in  the  status  of  an  officer  serving 
with  troops,  and  that  his  clerk  should  also  be  regarded  as  so  serving 
for  the  purpose  of  determining  his  right  to  quarters  or  commutation 
thereof. 

(72-333,  J.  A.  G.,  Mar.  12,  1914.) 


360       DIGEST    OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEEAL. 

BESERVATIONS:  Militai*y;  license  to  erect  permanent  structures  thereon. 

A  certain  banking  company  in  Honolulu,  H.  T.,  applied  for  per- 
mission to  open  a  branch  banking  house  upon  the  Schofield  Barracks 
Military  Reservation,  and  for  that  purpose  to  erect  thereon  a  suitable 
building.  It  proposed  to  do  a  general  banking  business,  including 
the  sale  of  exchange,  and  also  to  construct  an  adequate  vault  with 
safety  deposit  boxes  and  storage  room  for  valuable  packages. 

Held,  that  from  the  plans  submitted  and  from  the  stated  purposes 
©f  the  company  it  was  evident  that  the  structure  in  contemplation 
would  be  permanent  in  character;  that  it  would  be  inconsistent  to 
grant  a  revocable  license  for  its  construction;  and  that  the  executive 
had  no  authority  to  grant  licenses  for  the  construction  of  buildings  of 
that  character  upon  military  reservations. 

(80-816.1,  J.  A.  G.,  Mar.  12,  1914.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  Office  of  the  Judge  Advocate  General.) 

CIVHilAN  EMPLOYEES:  Medical  treatment;   contract  relations  with  the 
Government. 

A  member  of  the  caretaking  crew  of  certain  Army  transports  out 
of  commission  at  Newport  News,  Va.,  was  injured  during  his  em- 
ployment, and  it  was  found  necessary  to  place  him  in  a  private 
hospital  and  to  employ  a  private  physician  for  his  treatment.  The 
caretaking  crew  was  governed  by  the  rules  laid  down  for  the  Army 
Transport  Service  and  such  additional  rules  as  were  set  forth  rela- 
tive to  their  duties  as  caretakers  of  the  transports  in  question. 

Held,  that  as  there  was  nothing  in  the  man's  contract  of  employ- 
ment or  in  the  regulations  for  the  service  in  which  he  was  employed 
providing  for  hospital  or  surgical  care  at  the  expense  of  the  Govern- 
ment, payment  of  the  account  of  the  hospital  for  medical  services 
was  not  authorized.     20  Comp.  Dec,  64. 

(Comp.  Geo.  E.  Downey,  Mar.  21,  1914.) 


CIVILIAN    EMPLOYEES:    Of    the    Quartermaster    Corps;    traveling    and 
living  expenses;  temporary  duty. 

A  wheelwright  in  the  employ  of  the  Quartermaster  Corps  at  large, 
regularly  stationed  at  Fort  Sheridan,  111.,  was  directed  by  post 
special  order  dated  October  4,  1913,  confirming  verbal  order  dated 
February  25,  1913,  to  proceed  to  Texas  City,  Tex.,  for  temporary 
duty.  Paragraph  733,  Army  Regulations,  1913,  provides  for  the  re- 
imbursement of  civilian  employees  of  the  War  Department  for  actual 
expenses  incurred  while  traveling  under  orders,  as  follows: 

"5.  Cost  of  meals,  and  lodgings  including  baths,  tips,  and  laun- 
dry work,  not  to  exceed  $4.50  a  day  Avhile  on  duty  at  places  desig- 
nated in  the  orders  for  the  performance  of  temporary  duty,  but  reim- 
bursement of  such  expenses  will  be  limited  to  $1  a  day  after  the  first 
30  days  at  any  one  place,     *     *     *     ." 

Held,  that  the  claimant's  regular  station  being  at  Fort  Sheridan, 
he  was,  while  performing  duty  at  Texas  City  under  his  orders, 


DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       361 

absent  from  his  regular  station  on  temporary  duty,  and  was  entitled 
to  reimbursement  for  traveling  and  living  expenses  as  provided  for 
in  Army  Regulations  (20  Comp.  Dec,  477),  although  it  would  seem 
that  a  service  of  about  a  year  was  rather  too  long  still  to  be  regarded 
as  temporary.  This  question,  however,  was  not  decided. 
(Comp.  Geo.  E.  Downey,  Mar.  21,  1914.) 


CONTRACTS:  For  supplies;  advertising  and  renewals  after  the  fiscal  year. 

On  submission  of  the  question,  by  the  Auditor  for  the  Treastiry 
Department,  relative  to  contracts  for  the  purchase  of  supplies  in  the 
Supervising  Architect's  Office,  which  contracts  contained  a  provision 
for  two  annual  renewals  at  the  prices  and  upon  the  conditions 
stipulated  therein,  at  the  option  of  the  department — 

Held,,  that  as  the  authority  for  the  contracts  was  to  be  found  in 
the  annual  appropriation  acts  they  could  not  extend  beyond  the  fiscal 
year  for  which  the  appropriation  was  made,  and  that  the  renewal  of 
such  a  contract  for  a  succeeding  fiscal  year,  in  accordance  with  the 
reservation  contained  in  the  original  contract,  was  a  new  contiact 
and  was  not  made  in  compliance  with  the  provisions  of  section  3709, 
Revised  Statutes,  requiring  advertising  for  proposals  in  letting  con- 
tracts for  the  purchase  of  supplies,  the  advertisement  upon  which 
the  original  contract  was  based  extending  only  to  the  fiscal  year  to 
which  is  applied. 

(Comp.  Geo.  E.  Downey,  Mar.  9.  1914.) 


DESERTEBS:       Payment     of     expenses     of     apprehension;     mistaken     in- 
formation. 

The  police  authorities  of  Fresno,  Cal.,  arrested  a  man  suspected 
of  desertion  from  the  United  States  Army.  The  chief  of  police 
wrote  to  the  commanding  officer  at  the  Presidio,  San  Francisco,  in- 
forming him  of  the  arrest  and  asking  that  the  case  be  looked  up  and 
that  they  be  informed  of  the  situation,  stating  that  they  Avould  hold 
the  man  for  a  few  days  pending  such  investigation.  To  this  letter 
response  was  made  by  inclosing  a  deserter's  circular  describing  the 
man  in  custody.  The  police  authorities  thereupon  delivered  the  man 
to  the  military  authorities  at  the  Presidio,  incurring  an  expense  of 
$23.  and  were  then  informed  that  the  man  was  not  wanted.  The  fact 
was  that  he  had  previously  deserted,  had  been  punished  for  desertion, 
among  other  things,  by  being  dishonorably  discharged  from  the 
Army,  and  was  at  the  time  only  a  civilian. 

Held,  that  the  man  being  only  a  civilian  at  the  time  of  his  arrest 
and  delivery  and  not  liable  to  apprehension  as  a  deserter  from  the 
Army,  payment  of  the  claim  for  expenses  incurred  was  not  author- 
ized, either  from  the  appropriation  for  "  Contingencies  of  the  Army  " 
or  for  "  Incidental  Expenses." 

(Comp.  Geo.  E.  Downey,  Mar.  20,  1914.) 


TRANSPORTATION:  Rates  on  household  goods;  carriers  risk. 

The  Baltimore  &.  Ohio  Railroad  Co.  claimed  compensation  for  the 
transportation  of  household  goods,  professional  books,  etc.,  of  an 
Army  officer  changing  station.     The  transportation  was  furnished 


362        DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

on  a  Government  bill  of  lading  which  contained  the  provision  that 
"  the  shipment  is  at  '  owner's  risk'  or  released  rates  where  tariff  pro- 
vides lower  rates  on  that  account,  and  at  '  company's  risk '  where 
the  tariff  makes  no  such  provision."  In  this  shipment  the  tariff 
would  have  been  higher  if  the  goods  had  been  shipped  with  unlimited 
liability  than  if  shipped  with  limited  liability  in  case  of  loss.  The 
bill  of  lading  bore  the  statement  "  carrier's  risk." 

Held,  following  the  meaning  which  usage  has  placed  upon  the 
term  "  carrier's  risk "  stamped  upon  the  bill  of  lading,  the  trans- 
portation should  be  paid  for  at  the  higher  rate  fixed  for  unlimited 
liability,  but  that  to  avoid  doubt  the  term  should  be  abandoned  as 
not  expressing  any  clear  idea,  and  instead  thereof  the  term  "  full 
valuation,"  "  unlimited  valuation,"  or  some  other  similar  expression 
definitely  describing  the  condition  of  the  shipment,  should  be  used. 

(Comp.  Geo.  E.  Downey,  Feb.  28,  1914.) 


TRAVEL  ALLOWANCES:  To  enlisted  men  on  discharge;  deduction  for  in- 
debtedness due  to  the  United  States  and  to  its  instrumentaliies. 

A  private  soldier  claimed  that  he  was  short  paid  for  his  travel 
allowance  on  discharge  from  the  service  December  19,  1913,  and  the 
question  was  submitted  as  to  whether  or  not  the  act  of  August  24, 
1912  (37  Stat.,  576),  regarding  the  travel  allowances  of  soldiers  on 
discharge,  affected  the  practice  of  paying  a  soldier  said  travel  allow- 
ances in  full  regardless  of  any  indebtedness  due  to  the  Government 
or  to  its  instrumentalities.  For  many  years  it  was  optional  with  the 
Government  to  furnish  a  soldier  on  discharge  with  transportation 
from  place  of  discharge  to  place  of  enlistment,  or  to  commute  it  (Sec. 
1290,  Rev.  Stat).  The  act  of  May  26,  1900  (31  Stat.,  210),  changed 
this  to  a  straight  commutation  of  4  cents  per  mile.  The  act  of 
August  24,  1912,  supra,  made  it  optional  with  the  soldier  to  receive 
transportation  in  kind  and  subsistence  from  place  of  discharge  to 
place  of  enlistment,  or  to  any  point  of  no  greater  distance,  or  to 
receive  2  cents  per  mile  instead  thereof. 

Held,  that  when  an  enlisted  man  is  discharged  from  the  service  and 
elects  to  receive  2  cents  a  mile  in  lieu  of  transportation  in  kind  and 
subsistence  for  travel  from  place  of  his  discharge  to  the  place  of  his 
enlistment,  such  travel  allowance  is  not  subject  to  deduction  to  make 
good  indebtedness  of  the  soldier  to  the  United  States  or  to  such 
instrumentalities  of  the  Government  as  shall  have  been  legally  estab- 
lished, such  as  post  exchanges,  or  company  funds,  and  that  the  act  of 
August  24,  1912,  effected  no  change  in  the  practice  theretofore  pre- 
vailing with  regard  to  such  indebtedness. 

(Comp.  Geo.  E.  Downey,  Mar.  31,  1914.) 


BULLETIN  20. 

Bulletin!  WAR  DEPARTMENT, 

No.  20.    J  Washington,  May  IJ^^  191  Ji. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
for  the  month  of  April,  1914,  and  of  certain  decisions  of  the  Comp- 
troller of  the  Treasury  and  of  the  courts,  is  published  for  the  infor- 
mation of  the  service  in  general.  • 
[2094269  F— A.  G.  O.] 

By  order  of  the  Secretary  of  War  : 

W.  W.  WOTHERSPOON, 
Major  General^  Chief  of  Staff. 
Official  : 

GEO.  ANDREWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ABSENCE:  Leave  of;  payment  for  accumulated  leave  not  taken. 

A  former  civilian  clerk  of  the  Quartermaster  Corps  employed  in 
Alaska  at  a  salary  of  $1,500  per  annum  was  discharged  without 
prejudice  in  pursuance  of  the  law  providing  for  the  substitution  of 
civilian  employees  in  the  Quartermaster  Corps  by  men  enlisted  for 
that  purpose.  At  the  time  of  his  discharge  he  had  three  months' 
annual  leave  which  had  accrued  to  his  credit  in  accordance  with 
War  Department  Circular  A  of  January  12,  1913,  which  provided,  in 
effect,  for  the  accumulation  of  unused  annual  leave  not  to  exceed  120 
days  for  employees,  citizens  of  the  United  States,  on  duty  in  Alaska 
and  other  places  mentioned.  He  presented  a  claim  for  pay  for  such 
leave  at  the  rate  he  was  receiving  when  discharged. 

Held.,  That  the  claimant  was  not  entitled  to  pay  for  leave  of  ab- 
sence of  which  he  had  failed  to  avail  himself  during  the  period 
of  his  employment,  and  that  the  claim  could  not  be  approved.  10 
Comp.  Dec.  15. 

(2-152.1,  J.  A.  G.,  Apr.  17,  1914.) 


ADVERTISING:  In  newspapers;  payment  for,  at  sworn  rates. 

A  newspaper  requested  a  revision  of  its  account  with  the  Govern- 
ment for  advertising  from  July  3,  1913,  to  Fcbruar}^  23,  1914,  so  as  to 
allow  credit  for  a  higher  rate  than  that  applied  in  the  settlement  of 
the  account.  It  was  claimed  that  the  paper  had  adopted  a  new 
schedule  of  rates  which  became  effective  July  1,  1913,  but  it  was 
unable  to  show  the  customary  receipt  of  acknowledgment  thereof, 

363 


364        DIGEST    OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEBAL. 

and  had  only  the  office  record  that  it  was  forwarded.  The  act  of 
June  20, 1878  (20  Stat.,  216)',  required  advertising  accounts  to  be  paid 
for  at  a  price  not  to  exceed  commercial  rates  charged  to  private  indi- 
viduals, with  the  usual  discounts,  such  rates  to  be  ascertained  from 
sworn  statements  to  be  furnished  by  the  proprietors  or  publishers  of 
the  newspapers  proposing  so  to  advertise.  The  department  had  no 
record  of  the  receipt  of  the  revised  schedule,  and  if  one  had  been 
received  it  would  have  requested  the  sw^orn  statement  required  by  the 
statute. 

Ileld^  that  under  the  act  of  June  20,  1878,  as  well  as  under  the  law 
regulating  contracts  by  correspondence,  the  rates  filed  and  supported 
by  the  sworn  statement  required  by  the  statute  amounted  to  an  offer 
which  continued  until  notice  of  the  revocation  thereof  by  the  adop- 
tion of  a  new  schedule  was  actually  brought  home  to  the  department 
(9  Cyc,  296)  ;  that  until  then  all  advertising  must  be  regarded  as 
liaving  been  given  and  accepted  at  the  old  rates;  and  that  the  depart- 
ment was  without  authoritv  to  allow  the  credit  asked  for. 

(76-741,  J.  A.  G.,  Apr.  28,  1914.) 


ARMY:   Appointment  to,   from  civil  life;   qualifications   of   candidates  for 
second  lieutenant  of  Engineers. 

Section  5  of  the  river  and  harbor  act  of  February  27,  1911  (36 
Stat,  957),  provided  in  part  that — 

"  To  become  eligible  for  examination  and  appointment,  a  civilian 
candidate  for  the  appointment  as  second  lieutenant  [of  Engineers] 
must  be  an  unmarried  citizen  of  the  United  States  between  the  ages 
of  twenty-one  and  twenty-nine,  who  holds  a  diploma  showing  grad- 
uation in  an  engineering  course  from  an  approved  technical  school, 
and  is  eligible  for  appointment  as  a  junior  engineer  under  the  En- 
gineer Bureau  of  the  War  Department." 

Section  3  of  Civil-Service  Eule  VI  provided  that  the  term  of 
eligibility  of  an  applicant  for  an  appointment  should  be  one  year 
from  the  date  on  which  the  name  of  the  eligible  was  entered  on  the 
register,  which  term  might  be  extended  under  certain  conditions, 

Eeld^  that  the  statute  was  explicit  in  prescribing  the  qualifications 
of  an  applicant  for  appointment  as  second  lieutenant  of  engineers 
from  civil  life,  and  that,  before  a  candidate  could  be  admitted  to  ex- 
amination for  such  appointment,  it  was  necessary  that  he  should  be 
eligible  for  appointment  as  junior  engineer  under  civil-service  rules 
at  the  time  of  said  examination. 

(64-213.  J.  A.  G.,  Apr.  11,  1914.)  "     • 


IIvrDIANS:  Citizenship  of;  constitution  of  the  militia. 

The  question  arose  as  to  whether  certain  Indians  enrolled  at  the 
ITnited  States  Indian  School  at  Phoenix,  Ariz.,  were  citizens  within 
the  meaning  of  section  1  of  the  militia  act  of  January  21,  1903,  as 
amended  by  the  act  of  May  27,  1908  (35  Stat.,  399),  which  reads  in 
part  as  follows: 

"  The  militia  shall  consist  of  every  able-bodied  male  citizen  of  the 
respective  States  and  Territories  and  the  District  of  Columbia,  and 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       365 

every  able-bodied  male  of  foreign  birth  who  has  declared  his  inten- 
tion to  become  a  citizen,  who  is  more  than  eighteen  and  less  than 
forty-five  years  of  age." 

Ueld^  that  Indians  born  within  the  territorial  limits  of  the  United 
States,  members  of  and  owing  allegiance  to  one  of  the  Indian  tribes 
recognized  as  a  tribe  by  the  Federal  Government,  were  not  citizens 
by  birth  within  the  meaning  of  section  1  of  the  fourteenth  amend- 
ment to  the  Constitution  of  the  United  States,  and  could  become  citi- 
zens only  by  being  naturalized  under  some  treaty  or  statute;  and, 
upon  the  understanding  that  the  Indians  mentioned  were  in  such 
condition  and  had  not  been  so  naturalized,  held  further^  that  they 
were  not  citizens  within  the  meaning  of  section  1  of  the  militia  act  of 
January  21,  1903.  as  amended  by  the  act  of  May  27,  1908. 

(13-111.2,  J.  A,  G.,  Apr.  11,  1914.) 


LEASES:  Repairs  to  building  for  the  Signal  Corps;  damage  by  fire. 

The  building  leased  for  the  use  of  the  Signal  Corps  laboratory  in 
Washington,  D.  C,  was  partially  destroyed  by  fire  March  18,  1914. 
The  lease  contained  a  provision  relative  to  repairs  as  follows: 

"  That  the  party  of  the  first  part  [the  United  States]  shall  make 
all  such  betterments  and  repairs  of  every  kind  as  may  be  deemed 
necessary  for  the  purpose  for  which  the  premises  are  used,  and  upon 
the  expiration  of  the  term  of  this  lease,  and  of  any  renewal  thereof 
(or  on  relinquishment  under  the  reservation  therefor),  shall  sur- 
render the  premises  in  as  good  condition  as  they  now  are,  the  usual 
wear,  inevitable  accidents,  and  loss  by  fire  excepted." 

Held^  that  the  provision  in  the  lease  relative  to  the  making  of  such 
betterments  and  repairs  as  might  be  deemed  necessary  for  the  i)ur- 
poses  for  which  the  premises  were  used,  referred  only  to  such  altera- 
tions and  repairs  as  might  be  required  for  the  particular  purposes 
specified,  and  not  to  repairs  in  the  ordinary  acceptation  of  the  terra, 
and  that  the  general  rule  that  a  lessee,  in  the  absence  of  express  cove- 
nant, is  not  bound  to  rebuild  or  repair  in  case  of  loss  by  fire,  as  well 
as  the  express  exception  of  losses  by  fire  from  the  provision  to  sur- 
render the  premises  in  as  good  condition  as  they  were  at  the  time  of 
the  execution  of  the  lease,  relieved  the  United  States  from  any  obli- 
gation to  make  repairs  necessitated  by  said  fire. 

(80-718,  J.  A.  G.,  Apr.  15,  1914.) 


MEDICAL  ATTENDANCE:  Soldier  on  pass;  status  as  to  duty. 

A  private  soldier  stationed  at  Fort  Davis,  Alaska,  while  absent  on 
a  pass  extending  from  6.30  p.  m.  to  6  a.  m.  of  the  second  day  follow- 
ing, received  a  serious  gunshot  wound  in  a  house  which  he  was  visit- 
ing, from  which  wound  he  afterwards  died.  At  the  time  of  receiving 
this  wound  he  had  ample  time  in  which  to  return  to  his  station  before 
the  expiration  of  his  pass.  He  was  taken  by  his  comrades  to  a  private 
hospital  where  he  received  hospital  and  medical  treatment  for  which 
treatment  a  bill  was  rendered. 

Eeld^  that  as  the  soldier  was  absent  from  his  regidar  s-tation  on 
pass  at  the  time  he  received  the  injury  he  was  not  in  a  duty  status  so 


366       DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL. 

as  to  entitle  him  to  civilian  medical  attendance,  and  having  by  his 
own  act  placed  himself  beyond  the  reach  of  the  means  of  medical 
attendance  provided  by  the  Government,  he  was  not  entitled  to  be 
treated  at  a  private  hospital  at  Government  expense.  Held  there- 
fore^ that  the  bill  for  services  rendered  by  the  hospital  could  not  be 
paid.  The  opinions  contained  in  paragraph  8,  page  254,  Dig.  Op. 
J.  A.  G.,  1912,  in  so  far  as  they  expressed  the  rule  that  an  officer  or  a 
soldier  absent  from  duty  for  his  own  purposes  under  verbal  permit 
or  pass  not  exceeding  24  hours  is  entitled  during  such  absence  to 
civilian  medical  attendance  at  Government  expense,  were  overruled. 
(60-227.6,  J.  A.  G.,  Apr.  1,  1914.) 


OFFICES:  Holding  two;  National  Home  for  Disabled  Volunteer  Soldiers. 

A  colonel  on  the  retired  list  of  the  Army  receiving  as  such  a  salary 
of  $3,760  per  annum,  was  ser%dng  as  governor  of  a  national  home  for 
disabled  volunteer  soldiers  at  a  salary  of  $3,000  per  annum,  which 
latter  position  was  established  by  section  4829,  Revised  Statutes,  as 
amended  by  the  act  of  June  28,  1902  (32  Stat.,  472). 

Held^  that  such  retired  officer  was  entitled  to  occupy  the  position 
of  governor  of  a  national  home  and  receive  the  compensation  there- 
for, notwithstanding  the  fact  that  he  was  a  retired  officer  receiving 
more  than  $2,500  per  annum,  as  an  officer  of  the  home  was  not  an 
officer  of  the  United  States  within  the  meaning  of  section  2  of  the 
act  of  July  31,  1894  (28  Stat,  205).     8  Comp.  Dec,  443. 

(88-541.1,  J.  A.  G.,  Apr.  11,  1914.) 


PRIVATE   PROPERTY:    Loss   of,    at   post   laundry;    bailment   for   mutual 
benefit. 

The  clothing  of  certain  soldiers  was  stolen  from  the  post  laundry, 
where  the  articles  had  been  left  for  pressing  or  washing.  On  shut- 
ting down  the  laundry  on  the  evening  of  the  night  preceding  the 
theft  the  superintendent  had  personally  inspected  all  the  windows 
and  doors  and  was  positive  that  they  had  been  securely  locked.  The 
laundry  was  entered  by  breaking  the  glass  in  a  window,  removing 
the  glass,  and  then  unfastening  the  window. 

Held^  that  this  case  was  an  ordinary  bailment  for  mutual  benefit  in 
respect  to  which  the  rule  was  well  settled  that  the  bailee  is  held  to 
the  exercise  of  ordinary  care  in  relation  to  the  subject  matter  of  the 
bailment  and  is  responsible  only  for  ordinary  negligence  (5  Cyc, 
184) ;  and  that  as  it  appeared  that  the  precautions  taken  to  prevent 
this  theft  were  those  that  would  have  been  taken  by  a  cautious  man, 
and  as  there  was  no  express  undertaking  on  the  part  of  the  laundry 
to  insure  the  property,  the  laundry  was  not  liable  for  the  loss. 

(18-410,  J.  A.  G.,  Apr.  4,  1914.) 


PRIVATE  PROPERTY:  Stoppage  of  pay  of  soldiers  to  reimburse  damages 
to;  fifty-fourth  article  of  war;  liability  for  tort. 

The  place  of  business  of  a  private  individual  near  Galveston,  Tex., 
was  burned  and  indications  were  that  the  fire  was  caused  by  soldiei*s, 


DIGEST   OF   OPrNIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       367 

but  a  board  of  officers  convened  for  the  purpose  of  inquiring  into  and 
re])orting  upon  the  matter  was  unable  to  ascertain  from  the  evidence 
what  particular  men  had  set  it  on  fire.  The  board  fixed  upon  an 
amount  of  damage  which  the  owner  agreed  in  writing  to  accept  in 
full  satisfaction  of  his  claim. 

Held^  that  the  claim  could  not  be  settled  as  one  against  the  Gov- 
ernment, as  the  latter  is  not  responsible  for  the  unlawful  acts  of 
its  soldiers  or  employees,  and  that  the  ordinary  remedy  was  by 
suit  agains  the  individuals  who  committed  the  trespass  or  by  appli- 
cation for  relief  by  Congress.  Held  further^  that  the  case  seemed 
to  be  one  coming  under  the  provisions  of  the  fifty-fourth  article  of 
war,  which  provides  for  reimbursement  out  of  their  pay  for  damage 
to  private  property  growing  out  of  torts  committed  by  soldiers;  and 
advised^  that  the  board  be  reconvened  for  the  purpose  of  submitting 
a  definite  recommendation  under  that  article,  and  that  the  board  be 
informed  that  the  issues  should  be  determined,  not  beyond  a  reason- 
able doubt,  but  by  a  preponderance  of  evidence. 

(18-420,  J.  A.  G.,  Apr.  4,  1914.) 


PUBLIC    PBOPKBTY:    Issued    to    the    militia;    accountability;    charging 
appropriations. 

The  State  of  Montana  was  about  to  turn  back  to  the  United  States 
certain  sabers  and  equipments  which  had  been  issued  to  it  for  the 
use  of  its  organized  militia,  but  were  no  longer  required  for  such 
purpose.  The  sabers  were  still  serviceable,  and  it  was  desired  to 
repair  and  reissue  them  to  the  organized  militia  of  other  States 
making  requisition  therefor.  Section  1661,  Revised  Statutes,  as 
amended,  appropriates  annually  $2,000,000  for  "providing  arms, 
ordnance  stores,  quartermaster  stores,  and  camp  equipage  for  issue 
to  the  militia."  Section  8  of  the  act  of  May  27,  1908  (35  Stat.,  401), 
amending  section  IB  of  the  militia  act  of  January  21,  1903  (32  Stat., 
777),  appropriated  $2,000,000  for  the  purchase  or  manufacture  of 
arms  for  equipping  the  organized  militia,  without  charging  allot- 
ments to  the  several  States  from  the  appropriation  made  by  section 
1661,  Revised  Statutes. 

Held^  that  if  said  property  was  issued  at  the  expense  of  the  appro- 
priation contained  in  section  1661,  Revised  Statutes,  on  return  of 
the  same,  a  corresponding  credit  should  be  given  to  the  State's  allot- 
ment under  section  1661,  Revised  Statutes,  equal  to  the  actual  value 
of  such  property  when  returned,  and  the  State  thereupon  relieved 
from  further  accountability  therefor,  but  if  it  was  issued  under  the 
provisions  of  section  8  of  the  act  of  May  27,  1908,  the  State,  on  sur- 
render of  the  property,  would  be  relieved  from  further  accountability 
for  the  same,  but  would  not  be  entitled  to  any  additional  credit. 

Held  further^  that  the  Ordnance  Department  would  be  authorized 
to  repair  said  property  at  the  expense  of  the  appropriation  under 
which  it  was  issued,  and  to  reissue  the  same  to  other  organized  mili- 
tia under  authority  of  the  appropriation  out  of  which  the  property 
had  been  purchased. 

(58-300,  J,  A.  G.,  Apr.  16,  1914.) 


368       DIGEST    OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

PUBLIC    PROPERTY:    Sale    of    subsistence    stores    to    other    departraelits; 
10  per  cent  additional  to  cost  price  to  cover  wastage. 

The  act  of  March  3,  1011  (36  Stat.,  1047),  provided  for  the  sale  by 
the  War  Department  under  Army  Regulations  of  subsistence  stores 
to  other  bureaus  of  said  department,  and  to  other  executive  depart- 
ments of  the  Government,  or  to  the  employees  thereof,  and  further 
provided  that— 

"  When  the  transaction  is  between  the  Subsistence  Department 
and  another  executive  department  of  the  Government  or  employees 
thereof,  the  price  to  be  charged  shall  include  the  contract  or  invoice 
price  and  10  per  centum  additional  to  cover  wastage  in  transit,  and 
the  cost  of  transportation." 

A  number  of  emergency  rations  had  been  sold  by  the  Subsistence 
Department  of  the  Army  to  the  officer  in  charge  of  .the  navy  yard 
at  New  York,  and  had  been  charged  for  on  the  bill  at  the  cost  or 
invoice  price,  with  10  per  cent  additional  and  the  cost  of  trans- 
portation added.  It  was  stated  that  no  loss  had  occurred  through 
wastage. 

Held,  that  the  addition  of  10  per  cent  to  the  cost  price  of  subsist- 
ence stores  sold  to  another  executive  department  was  a  statutory 
requirement,  and  could  not  be  disregarded,  although  no  wastage  was 
shown,  and  that  the  additional  10  per  cent  should  be  included  in  the 
bill  rendered  for  this  sale. 

(80-135,  J.  A.  G.,  Apr.  23,  1914.) 


TAXATION:  On  operations  of  the  Government;  license  fee  for  men  enlisted 
in  the  Quartermaster  Corps  for  chauffeurs. 

Tlie  question  arose  as  to  the  reimbursement  for  license  fees  at  the 
rate  of  $2  each  charged  by  the  Philippine  Government  to  certain 
enlisted  chauffeurs  in  the  Quartermaster  Corps  at  Manila,  P.  I.,  for 
the  privilege  of  operating  motor  vehicles,  whether  belonging  to  the 
United  States  Government  or  to  private  individuals. 

Held,  that  it  is  a  fundamental  principle  of  law  that  the  property 
and  instrumentalities  of  the  United  States  Government  by  which 
it  performs  its  proper  governmental  functions,  can  not  be  taxed  by 
a  State  or  municipality ;  that  the  license  fees  in  question  were  a  tax 
and  not  a  reimbursement  for  services  rendered,  and  practically 
amounted  to  a  tax  upon  a  Government  instrumentality,  which,  if 
permitted,  would  amount  to  a  regulation  by  the  Philippine  Gov- 
ernment of  the  internal  administration  of  the  Army;  that  the  Phil- 
ippine Government  had  no  authority  to  re<iuire  licenses  of  men 
enlisted  as  chauffeurs  in  the  Army  for  operating  Government  auto- 
mobiles in  the  performance  of  their  duties;  and  that  the  amounts 
advanced  for  licenses  did  not  constitute  a  proper  charge  against  the 
United  States. 

(90-125,  J.  A.  G.,  Apr.  21,  1914.) 


TELEGRAPH  SERVICE:   Charges  for,   to   other  departments   of  the  Gov- 
ernment; Washington-Alaska  Military  Cable  &,  Telegraph  System. 

The  Chief  Signal  Officer  of  the  Army  recommended  that  a  charge 
be  made  for  official  messages  transmitted  over  the  Washington- 
Alaska  Telegraph  &  Cable  Sj^stem  in  Alaska  by  officials  of  the  Terri- 


DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       369 

tory  of  Alaska  and  by  departments  other  than  the  War  Department, 
of  one-half  of  the  established  commercial  rate  as  fixed  by  the  Post- 
master General  for  Government  messages  transmitted  over  commer- 
cial Pacific  cables. 

Held^  that  there  was  no  legal  objection  to  this  action,  in  view  of 
the  authority  conferred  upon  the  Secretary  of  War  by  the  act  of 
May  26,  1900  (31  Stat.,  206),  authorizing  commercial  business  to  be 
done  over  the  said  system  under  such  conditions  as  might  be  deemed 
by  him  "  equitable  in  the  public  interests,"  and  that  the  charge  so 
fixed  vs^ould  probably  be  accepted,  in  the  absence  of  a  showing  to  the 
contrary,  as  a  proper  charge  to  other  departments  of  the  Govern- 
ment for  the  cost  of  the  ser"\'ice  furnished  them;  and  held  further^ 
that  payments  made  by  other  departments  for  services  so  rendered 
might  be  accounted  for  and  paid  into  the  Treasury  of  the  United 
States  as  prescribed  for  commercial  business. 

(80-471,  J.  A.  G.,  Apr.  8,  1914.) 


TRAVEL  ALLOWANCES:  Medical  officers  discharged  with  one  year's  pay; 
mileage  and  transportation  of  private  property. 

The  act  of  March  2,  1901  (31  Stat.,  902),  provides: 

"  That  hereafter  when  an  officer  shall  be  discharged  from  the 
service  except  by  way  of  punishment  for  an  offense,  he  shall  receive 
for  travel  allowances  from  the  place  of  his  discharge  to  the  place  of 
his  residence  at  the  time  of  his  appointment  or  to  the  place  of  his 
original  muster  into  the  service  four  cents  per  mile." 

Two  medical  officers  were  honorably  discharged  from  the  service 
of  the  United  States  with  one  year's  pay  under  the  provisions  of 
section  5  of  the  act  of  April  23,  1908  (35  Stat.,  67). 

Held^  that  the  mileage  allowance  provided  for  by  said  act  of  March 
2,  1901,  must  be  treated  as  a  full  compensation  for  all  traveling 
expenses  from  place  of  discharge  to  place  of  original  muster  into  the 
service,  and  that  the  officers  were  not  entitled  to  transportation  of 
their  baggage  and  mounts  at  Government  expense  on  such  discharge. 

(94-236,  J.  A.  G.,  Apr.  4,  1914.) 


DECISIONS  OF  THE  COMPTEOLLER  OF  THE  TREASURY, 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

APPOINTMENT:   Member   of   Army   Nurse    Corps;  time   of   taking   effect; 
expenses. 

An  appointment  in  the  Army  Nurse  Corps  was  mailed  to  the 
appointee  December  23, 1913,  at  a  civilian  hospital  in  Colorado,  where 
she  was  employed,  together  with  a  blank  form  of  oath  for  execution 
and  return.  She  was  informed  that  upon  receipt  of  the  oath  duly 
executed,  the  necessary  orders  and  transportation  request  would  be 
issued  to  her,  and  that  she  should  not  commence  her  journey  to  her 
future  place  of  duty  until  after  receipt  of  assignment  orders.  The 
oath  was  executed  December  29,  1913,  and  received  back  by  the  Sur- 

93668°— 17 24 


370        DIGEST    OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL. 

geon  General  January  2,  1914,  whereupon  an  order  was  forwarded  to 
her  directing  her  to  proceed  without  delay  to  Letterman  General 
Hospital,  San  Francisco,  CaL,  for  assignment  to  duty.  This  order 
was  received  by  her  January  8,  1914,  and  she  reported  at  the  Letter- 
man  General  Hospital  January  10  following.  She  presented  a  claim 
for  living  expenses  between  December  29,  1913,  date  of  taking  the 
oath,  and  January  8,  1914,  date  of  receiving  her  appointment  and 

Section  19  of  the  act  of  February  2,  1901  (31  Stat.,  753),  establish- 
ing a  Nurse  Corps  (female)  in  the  Army,  provided  that  "they  shall 
be  entitled  to  quarters,  subsistence,  and  medical  attendance  during 
illness." 

Held,  that  during  the  period  covered  by  her  claim,  said  nurse  was 
in  a  duty  status  awaiting  assignment  and  travel  orders,  and  under 
such  circumstances  was  entitled  to  the  pay  and  allowances  authorized 
by  law  and  regulations  covering  the  period  from  date  of  taking  the 
oath  to  date  of  receipt  of  and  compliance  with  her  orders  to  proceed 
to  Letterman  General  Hospital,  the  charge  for  subsistence  and  room 
rent  not  to  exceed  what  it  would  have  cost  the  United  States  to  have 
furnished  her  subsistence  and  the  quarters,  heated  and  lighted,  which 
she  occupied,  and  not  to  exceed  such  allowances  as  were  authorized 
by  regulation. 

(Comp.  George  E.  Downey,  Apr.  2,  1914.) 


CLERKS  AND  EMPLOYEES:   Pay  during  suspension  under  charges;  re- 
stored to  duty. 

A  clerk  in  a  United  States  local  land  office  was  suspended  from 
duty  without  pay  pending  the  investigation  of  charges  against  him 
involving  an  assault  upon  the  register  of  the  office.  He  was  acquitted 
of  the  charge  of  felonious  assault  after  trial  before  a  jury.  He  was 
then,  by  order  of  the  Commissioner  of  the  General  Land  Office,  re- 
stored to  duty,  and  transferred  to  another  office.  The  Commissioner 
directed  that  his  salary  be  paid  from  and  including  the  date  of 
suspension. 

Held,  that  Avhere  an  employee  has  been  legally  suspended  without 
pay  by  authority  of  the  head  of  a  department  pending  investigation 
of  charges,  and  after  the  investigation  an  order  is  issued  restoring 
him  to  duty  with  pay  from  date  of  suspension^  such  order  will  not 
be  construed  as  operating  retroactively  to  entitle  the  employee  to  pay 
during  such  period.     See  case  of  Lounsberrv,  11  Comp.  Dec,  66. 

(20  Comp.  Dec.  505,  Jan.  16,  1914.) 


DAMAGES:   Liquidated;    contract   for   quantities   at   unit   rates;   delay   in 
completion. 

A  construction  company  entered  into  a  contract  with  the  United 
States  at  unit  prices  to  furnish  140  oak  piles,  350  tons  of  stone,  and 
350  cords  of  brush,  and  to  drive  the  piles  and  place  the  stone  and 
brush  as  specified,  the  evident  purpose  being  to  protect  the  beach 
front  at  a  certain  lighthouse  station  from  wave  action  and  erosion. 
The  contract  provided  for  the  deduction  of  $5  per  day  as  liquidated 
damages  for  each  and  every  day's  delay  in  the  completion  of  the  work 


DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       371 

beyond  the  time  specified  therefor.  There  was  a  delay  of  16  days  in 
completion  of  the  work  beyond  the  time  limit. 

Held^  that  from  the  nature  of  the  c(mtract  there  was  no  possibility 
that  the  silme  damages  would  result  from  a  partial  as  from  an  entire 
failure  to  complete  the  work  in  time,  and  the  provision  for  liquidated 
damages,  viewed  in  connection  with  the  subject  matter  of  the  con- 
tract, was  palpably  not  intended  as  a  liquidation  of  damages  for  the 
delay,  and  must  be  interpreted  as  a  provision  for  a  penalty,  and  that 
such  provision  was  enforcible  only  to  the  extent  of  any  actual  dam- 
ages occasioned  to  the  Government  by  the  contractor's  delay.  19 
Comp.  Dec.  20;  20  Id.  16. 

(Comp.  George  E,  Downey,  Apr.  15,  1914.) 


PHILIPPINE   SCOUTS:    Higher    pay   for    services   with;   absence    on    sick 
leave  taken  while  surveyor  of  port. 

Section  36  of  the  act  of  February  2,  1901  (31  Stat.,  757),  provided 
for  the  organization  of  the  Philippine  Scouts  into  squadrons  or  bat- 
talions corresponding  to  similar  organizations  in  the  cavalry  and 
infantry  arms  of  the  service,  and  further  provided  that — 

"  The  majors  to  command  the  squadrons  and  battalions  shall  be 
selected  by  the  President  from  captains  of  the  line  of  the  Regular 
Army,  and  while  so  serving  they  shall  have  the  rank,  pay,  and  allow- 
ances of  the  grade  of  major.  The  captains  of  the  troops  or  com- 
panies shall  be  selected  by  the  President  from  first  lieutenants  of  the 
line  of  the  Regular  Army,  and  while  so  serving  they  shall  have  the 
rank,  pay,  and  allowances  of  captain  of  the  arm  to  which  assigned." 

A  captain  in  the  Army  was  detailed  for  duty  with  the  Philippine 
Scouts  under  said  law\  During  said  detail  he  was  on  detached  serv- 
ice as  surveying  officer  of  the  port  of  Manila,  P.  I.,  from  April  11  to 
June  26,  1912,  and  was  absent  sick  from  June  27.  to  September  14, 
1912.  He  was  paid  the  pay  and  allowances  of  a  major.  The  Auditor 
disallowed  the  excess  above  the  pay  and  allowances  of  captain  on  the 
ground  that  the  law  did  not  authorize  the  higher  pay  to  an  officer 
unless  he  was  actually  performing  duty  with  the  Philippine  Scouts. 

Held^  that  under  the  law  above  quoted  it  was  not  sufficient  that  an 
officer  be  merely  detailed  wdth  the  Scouts  to  entitle  him  to  the  higher 
pay  of  the  grade,  but  that  he  must  perform  service  with  them,  and  if 
the  service  was  not  rendered,  the  higher  pay  was  not  earned. 

Held  further^  that  duty  as  surveying  officer  at  Manila  for  a  part 
of  the  time  was  not  service  with  the  Scouts;  that,  as  he  was  absent 
sick  from  this  duty,  such  absence  would  not  be  regarded  as  service ; 
and  that  the  claim  for  higher  pay  was  properly  disallowed. 

(Comp.  George  E.  Downey,  Apr.  20,  1914.) 


TIME:  Computation  of  for  pay  purposes;  days  in  February;  leave  without 
pay. 

A  clerk  of  class  three  in  the  War  Department  was  absent  on  au- 
thorized leave  without  pay  for  thirty  days  from  10.40  a.  m.,  of  Feb- 
ruary 24,  1914,  and  returned  to  duty  March  27,  1914.  For  such  ab- 
sence in  February,  the  Auditor  for  the  War  Department,  in  making 
settlement,  deducted  from  her  monthly  salary  for  that  month  pay 


372        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

for  the  number  of  days  necessary  to  make  the  month  one  of  thirty 
da^'s,  or  two  days  in  addition  to  the  number  actually  absent  during 
the  month,  corresponding  to  the  theoretical  days  of  February  29th 
and  30th.  The  act  of  June  30,  1906  (34  Stat.,  763),  provided  certain 
rules  for  the  division  of  time  and  computation  of  pay  for  services 
rendered,  as  follows: 

1.  Annual  compensation  shall  be  divided  into  twelve  equal  install- 
ments, one  for  each  calendar  month. 

2.  In  paying  for  a  fractional  part  of  a  month  one-thirtieth  of  a 
monthly  installment  or  of  a  monthly  compensation  shall  be  the  daily 
rate  of  pay. 

3.  Every  month  shall  be  held  to  consist  of  thirty  days. 

4.  The  thirty-first  day  of  a  thirty-one  day  month  shall  be  ex- 
cluded from  computation. 

5.  February  shall  be  treated  as  if  it  actually  had  thirty  days. 

6.  One  entering  the  service  during  a  thirty-one  day  month  and 
serving  until  the  end  thereof  shall  be  paid  from  the  date  of  entry 
to  the  thirtieth  inclusive. 

7.  One  entering  the  service  during  February  and  serving  until 
the  end  thereof  shall  be  paid  a  month's  pay  less  as  many  thirtieths 
as  there  were  days  elapsed  prior  to  date  of  entry. 

8.  One  day's  absence  on  the  thirty-first  of  a  month  shall  forfeit  a 
day's  pay. 

HeJcL  that  the  theoretical  days  of  the  29th  and  30th  of  February 
do  not  attach  themselves  to  nor  confer  any  benefit  for  services  per- 
formed on  any  days  of  said  month  previous  to  the  28th,  are  used 
only  as  a  basis  of  computation,  and,  by  virtue  of  the  express  pro- 
visions of  the  statute,  they  attach  themselves  to  and  become  prac- 
tically a  part  of  the  28th  day.  Held  further^  that  the  action  of  the 
Auditor  for  the  War  Department  w^as  correct,  and  deduction  for 
absence  should  be  made  for  two  days  in  addition  to  those  accruing 
up  to  and  including  the  28th,  in  computing  pay  due  for  the  month 
of  February. 

The  decision  in  13  Comp.  Dec,  205,  so  far  as  it  conflicted  with 
this  principle,  and  others  following  that  as  a  precedent  were  over- 
ruled. 
■  (Comp.  George  E.  Downey,  April  30,  1914.) 


TRANSPORTATION:  Freight  rates;  land-grant  deduction;  goods  not  owned 
by  the  United  States. 

Certain  furniture  purchased  for  the  use  of  the  United  States  was 
shipped  on  a  Government  bill  of  lading  from  York,  Pa.,  to  San 
Diego,  Cal.,  under  a  contract  by  which  the  contractor  was  to  furnish 
and  install  the  same  in  the  post-office  building  at  the  latter  place. 
The  title  to  the  furniture  remained  in  the  manufacturer  and  did  not 
vest  in  the  United  States  until  said  furniture  was  transported  to  and 
installed  in  the  Federal  building  at  San  Diego. 

Held^  that  where  the  Government  purchases  property  to  be  de- 
livered at  a  certain  point,  and  assumes  no  interest  therein  nor  obliga- 
tion with  reference  thereto  until  such  delivery,  and  where  the  trans- 
portation charges  are  not  payable  by  the  United  States,  shipment 
thereof  is  of  no  concern  to  the  Government,  and  the  use  of  a  Govern- 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       373 

ment  bill  of  lading  for  the  shipment  is  improper.  Held  further^  that 
the  use  of  the  Government  bill  of  lading  was  not  conclusive  of  the 
question,  and  that,  as  the  property  transported  was  not  Government 
property,  it  should  bear  the  full  commercial  rates  without  land-grant 
deduction. 

(Comp.  George  E.  Downey,  Apr.  4,  1914.) 


TRANSPORT ATIOZST:    Passenger   party    rates;    one    request,    but   no    ticket 
issued. 

Three  separate  parties  of  more  than  10  men  each  were  transported 
over  the  El  Paso  &  SoutliAvestern  Railroad  system.  One  transpor- 
tation request  was  issued  for  each  party,  and  the  members  of  each 
party  traveled  together,  but  no  tickets  were  issued  either  for  the 
parties  as  a  whole  or  for  the  individuals,  but  transportation  was  pi'o- 
vided  on  the  regular  transportation  requests.  The  company  claimed 
for  passenger  service  furnished  at  individual  rates,  contending  that 
the  case  did  not  fall  within  the  company's  tariff  rates  for  party  fares, 
which  provided  only  for  "  one  way  continuous  passage  fares  for 
parties  of  10  or  more  adults  *  *  *  traveling  together  on  one 
ticket,  w^here  cash  is  paid  on  delivery  of  ticket."  It  was  stated  that 
no  party  ticket  was  requested  or  furnished,  and  that  none  of  the 
parties  traveled  together  on  a  party  ticket. 

Held,  that  the  substantial  difference  between  party  service  and  in- 
dividual service  was  that  in  the  former  case  the  entire  number  of 
passengers  traveled  together  as  an  entity,  while  in  the  latter  case  each 
individual  traveled  as  a  separate  entity  and  was  dealt  with  by  the 
company  as  one  for  whom  a  separate  ticket  is  furnished  and  ac- 
counted for  by  the  conductor ;  that  the  service  in  said  case  conformed 
substantially  to  party  service;  and  that  the  cash  condition  in  the 
party  tariff  did  not  affect  the  rate  to  be  charged  the  Government  (20 
Comp.  Dec.  77).  Held  therefore^  that  settlement  should  be  made  on 
the  party-rate  basis. 

(Comp.  George  E.  Downey,  Apr.  20,  1914.) 


DECISIONS  OF  THE  COURTS. 

(Digests  prepared  in  the  office  of  tlie  Judge  Advocate  General.) 
DAMAGES:  Liquidated;  extension  of  time  by  supplemental  contract. 

A  contract  for  the  construction  of  an  electric  lighting  system  at 
Fort  Wm.  McKinley,  P.  I.,  provided  that  the  work  should  be  com- 
pleted by  October  27,  1907,  and  in  case  of  default  the  contractor 
agreed  to  pay  $25  a  day  as  liquidated  damages  for  delay  beyond  the 
period  fixed  for  completion.  Two  days  before  the  time  for  com- 
pleting the  work  a  further  contract  was  entered  into  extending  the 
time  for  completion  to  December  31,  1907,  and  by  this  time  the  work 
was  duly  completed  and  the  same  Avas  accepted  by  the  Government. 
In  the  settlement,  the  sum  of  $1,625  was  deducted,  which  included 
liquidated  damages  for  time  of  delay  beyond  October  27,  1907,  the 
date  fixed  in  the  original  contract  for  the  completion  of  the  work, 
and  also  the  sum  of  $405  for  the  services  of  a  Government  electrical 
engineer  during  such  extension  period. 


374     DIGEST  OF  opiisrioNS  or  the  juekje  advocate  general. 

Held,  that  the  officer  who  made  the  first  contract  had  authority  to 
modify  it  if  he  did  not  thereby  give  away  any  accrued  rights  of  the 
Government,  and  as  no  right  to  liquidated  damages  had  accrued  at 
the  time  of  the  modification  of  the  original  contract,  and  as  the  work 
had  been  completed  within  the  extended  time,  the  contractor  was 
improperly  charged  with  the  liquidated  damages  and  was  entitled  to 
judgment  for  the  amount  retained. 

Germann  <&  Co.  v.  United  States,  U.  S.  Court  of  Claims,  No. 
30830,  Mar.  16,  1914.) 

EVIDENCE :  Credibility  of  an  accused  as  a  witness. 

The  court  had  charged  the  jury  in  a  murder  trial  where  the  de- 
fendant has  testified  on  his  own  behalf  that— 

"A  witness  who  has  no  interest  whatever  in  the  outcome  of  a  law- 
suit, who  is  entirely  disinterested,  other  things  being  equal,  is  en- 
titled to  very  much  more  credence  than  a  witness  who  is  interested 
in  the  verdict  of  the  jury.  Especially  is  that  so  where  the  witness  is 
contradicted  by  other  witnesses." 

Held,  that  this  instruction  was  erroneous  and  that — 

"A  disinterested  witness  is  not  necessarily  entitled  to  any  more 
credit  than  an  interested  witness,  but  the  whole  question  of  his 
credibility  is  for  the  jury." 

{Peo2>le  V.  Gerdviiie,  Court  of  Appeals  of  New  York,  104  N.  E., 
129.) 


PARDONS:  Conditional;  revocation  of. 

The  relator  had  been  convicted  and  sentenced  to  imprisonment  for 
life.  The  Governor  of  the  State  granted  him  a  pardon  upon  the 
condition  that  the  beneficiary  must  conduct  himself  as  a  good  and 
law-abiding  citizen  and  not  again  violate  the  laws  of  the  State.  The 
condition  was  accepted  and  the  prisoner  released ;  but  thereafter  the 
governor  issued  a  proclamation  revoking  and  annulling  the  condi- 
tional pardon  and  ordering  the  rearrest  and  confinement  of  the 
prisoner  on  the  ground  that  since  the  said  conditional  pardon  was 
granted  further  evidence  had  been  presented,  and  it  was  not  thought 
that  the  prisoner  was  deserving  of  clemency  at  that  time.  Upon 
hearing  on  a  writ  of  habeas  corpus. 

Held,  that  the  power  to  gi-ant  an  absolute  pardon  carries  with  it 
power  to  grant  a  conditional  pardon  and  to  make  the  pardon  con- 
tingent upon  any  conditions,  so  long  as  they  are  not  illegal,  that  the 
pardoning  power  desires  to  impose ;  that  the  power  to  grant  pardons 
does  not  carry  with  it  the  power  to  revoke  them ;  that  a  conditional 
pardon,  like  an  unconditional  one,  could  not,  when  granted,  be  re- 
voked by  the  pardoning  power  except  for  a  violation  of  a  condition ; 
and  that  the  governor  could  not  revoke  a  conditional  pardon  on  the 
ground  that  after-discovered  evidence  lead  him  to  believe  that  clem- 
ency was  ill  advised.  Held  further,  that  a  pardon  once  granted  will 
not  be  revoked  merely  upon  the  allegation  that  it  was  procured  by 
fraud,  but  the  fraud  must  be  judicially  ascertained.  The  prisoner 
was  therefore  discharged. 

{Ex  parte  Rice,  Criminal  Court  of  Appeals  of  Texas,  162  S.  W., 
891.) 


BULLETIN   25. 

Bulletin  1  WAR  DEPARTMENT, 

No.  25.   J  Washington,  Jutw  18,  IQlIf. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  May,  1914,  and  of  certain  decisions  of 
the  Comptroller  of  the  Treasury  and  of  the  courts,  is  published  for 
the  information  of  the  service  in  general. 
[2094269  G— A.G.O.] 
By  order  of  the  Secretary  of  War: 

W.  W.  WOTHERSPOON, 
Major  General,  Chief  of  Staff. 
Official  : 

GEO.  ANDREWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

AIiASKAN  RAILEOAB:  I>etail  of  Cavalry  officer  as  one  of  a  commission, 
to  locate;  detail  of  officers  of  the  Engineer  Corps;  additional  compensa- 
tion. 

The  act  of  March  12,  1914  (Pub.  No.  69,  63d  Cong.)  provided  for 
the  location,  construction,  and  operation  of  railroads  in  Alaska,  and 
empowered  the  President,  among  other  things — "to  employ  such 
officers,  agents,  or  agencies,  in  his  discretion,  as  may  be  necessary  to 
enable  him  to  carry  out  the  purposes  of  this  act;  to  authorize  and 
require  such  officers,  agents,  or  agencies  to  perform  any  or  all  of  the 
duties  imposed  upon  him  h^  the  terms  of  this  act;  to  detail  and 
require  any  officer  or  officers  in  the  Engineer  Corps  in  the  Army  or 
Navy  to  perform  service  under  this  act ;  to  fix  the  compensation  of  all 
officers,  agents,  or  employees  appointed  or  designated  by  him ;  "  etc. 

Under  authority  of  said  act,  it  was  proposed  to  create  an  Alaskan 
engineering  commission  to  locate  the  railroad  in  Alaska,  and  it  was 
also  proposed  to  appoint  an  officer  of  the  Cavalry  of  the  Army  as  a 
member  of  said  commission. 

Held,  that  the  duties  which  the  officer  would  be  called  upon  to  per- 
form would  be  within  the  prohibition  of  section  1222,  Revised  Stat- 
utes, and  that  he  could  not  accept  the  appointment  and  perform  the 
duties  thereunder  without  vacating  his  commission  in  the  Army. 

(64-312,  J.  A.  G.,  May  1,  1914.) 

A  joint  resolution  having  been  introduced  in  Congress  authorizing 
the  President  "  to  detail  and  require  "  the  officer  in  question  to  per- 
form duty  in  connection  with  the  said  xA.laskan  railroad. 

Held  further,  that  such  resolution  would  remove  the  prohibition  of 
section  1222,  Revised  Statutes,  against  the  appointment  of  the  officer ; 

375 


376        DIGEST    OF    OPINIONS    OF    THE    JUIK5E    ADVOCATE    GEXEEAL. 

that  the  pay  of  the  officer  would  continue  while  detailed  as  a  member 
of  said  commission ;  and  that  under  the  authority  conferred  upon  the 
President  "to  fix  the  compensation  of  all  officers,  agents,  or  em- 
ployees appointed  or  designated  by  him"  for  serA^ice  in  connection 
with  said  railroad,  it  was  within  his  power  to  supplement  the  pay  of 
the  officer  by  such  amount  as  he  mght  deem  equitable  and  to  supple- 
ment the  pay  of  the  other  officers  of  the  Army  and  the  officers  of  the 
Navy  authorized  to  be  detailed  for  such  service. 
(Idem,  May  18,  1914.) 

BAGGAGE:  Transportation  of  change  of  station  allowance  of,  of  oflB.cers  on 
duty  with,  the  Government  of  the  Canal  Zone;  appropriation  available., 

An  officer  ordered  to  duty  with  the  Government  of  the  Canal  Zone 
desired  to  have  a  part  of  his  change  of  station  allowance  of  baggage 
transported  from  the  United  States  to  the  Canal  Zone  on  Govern- 
ment bill  of  lading. 

Held,  that  the  assignment  of  officers  of  the  Army  to  duty  with  the 
Government  of  the  Canal  Zone  was  authorized  by  special  law  which 
duty  was  purely  civil  in  character,  and  that  the  expense  of  transport- 
ing the  change  of  station  allowance  of  baggage  of  an  officer  so  as- 
signed from  the  United  States  to  his  post  of  duty  with  the  Govern- 
ment of  the  Canal  Zone,  should  be  borne  by  the  appropriation  for 
said  Government,  and  not  by  the  appropriation  for  the  transporta- 
tion of  the  Army. 

(94-233,  J.  A."^  G.,  May  12,  1914.) 


BURIAL  EXPENSES:  Of  accepted  applicant  for  enlistment;  appropriation. 

An  accepted  applicant  for  enlistment  in  the  Army  died  at  Colum- 
bus Barracks,  Ohio,  before  regular  enlistment  in  the  service  and 
when  presumably  he  was  receiving  medical  treatment  at  the  expense 
of  the  Government  under  authority  of  the  act  of  Congi'ess  approved 
March  2,  1913  (37  Stat.,  718),  which  appropriated,  among  other 
things,  "  for  medical  care  and  treatment  not  otherwise  provided 
f^Y^     *     *     *     q£  applicants  for  enlistment." 

Held,  that  the  care  and  custody  of  the  remains  of  the  deceased  were 
by  his  death  cast  upon  the  Government,  and  it  became  its  duty  to  dis- 
pose of  them  in  a  proper  manner  in  the  interests  of  decency  and  sani- 
tation where  no  one  better  entitled  to  the  custody  applied  to  perform 
this  service,  and  that  the  expenses  should  be  charged  against  the 
appropriation  for  incidental  expenses  of  the  recruiting  service  under 
the  appropriattion  for  incidenal  expenses  of  the  Quartermaster 
Corps.     See  11  Comp.  Dec,  789. 

(5-244,  J.  A.  G.,  May  26,  1914.) 


COMMAND:    O^fRcers   of   the   Quartermaster   Corps   in   charge    of  post   tem- 
porarily vacated;  functions  of  commanding  officer. 

A  major  of  the  Quartermaster  Corps  came  into  the  charge  of  a  post 
temporarily  vacated  by  its  garrison,  under  the  operation  of  para- 
graph 214,  Army  Eegulations,  1913,  which  provided  that  military 
posts  temporarily  evacuated  by  troops  will  be  under  charge  of  the 


DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       377 

Quartermaster  Corps.  Certain  troops  of  the  Quartermaster  Corps 
and  of  the  Hospital  Corps  were  left  at  the  post.  A  line  officer,  junior 
to  the  quartermaster  in  charge,  was  under  orders  to  proceed  to  the 
post  and  report  to  the  commanding  officer. 

Paragraph  18  of  the  same  regulations  provided  that  an  officer  of 
the  Quartermasters  Corps  "  shall  not  assume  command  of  troops 
unless  put  on  duty  under  orders  which  specially  so  direct,  by  author- 
ity of  the  President."  and  paragraph  13  of  the  same  regulations  pro- 
vided that — 

"  Command  is  exercised  by  virtue  of  office  and  the  special  assign- 
ment of  officers  holding  military  rank  Avho  are  eligible  by  law  to 
exercise  command " ;  and  that  an  officer  could  not  put  himself  on 
duty  without  orders  from  competent  authority. 

Held^  that  a  major  of  the  Quartermaster  Corps  coming  into  the 
charge  of  a  post,  although  eligible  to  command  could  not  place  him- 
self in  command  of  the  post  or  exercise  the  functions  of  a  command- 
ing officer  without  special  assignment  from  the  President,  and  could 
not  as  such  commanding  officer  issue  direct  orders  directing  travel  or 
appoint  a  summary  court  officer  who  would  have  jurisdiction  to  try 
members  of  the  Hospital  Corps  or  any  other  than  members  of  the 
Quartermaster  Corps,  or  appoint  a  recruiting  officer;  that  he  should 
sign  official  communications  as  "  quartermaster  in  charge "  and  not 
as  commanding  officer,  and  since  there  was  no  commanding  officer  at 
the  post,  the  signature  of  the  quartermaster  in  charge  should  be 
accepted  as  equivalent  to  that  of  the  commanding  officer,  except 
where  such  signature  implied  the  performance  of  duty  which  could 
be  performed  only  by  the  commanding  officer;  that  should  a  line 
officer  assume  command  of  the  post  he  would  not  be  authorized  to 
place  members  of  the  Quartermaster  Corps  on  guard  at  the  post,  as 
that  would  be  requiring  them  to  perform  military  duties  not  pertain- 
ing to  their  corps,  but  that  they  might  be  placed  on  guard  by  the 
quartermaster  in  charge  if,  in  his  opinion,  a  guard  was  necessary  to 
the  safekeeping  of  the  property  under  his  care  at  the  post;  and  that 
should  a  junior  line  officer  arrive  at  the  post  pursuant  to  orders  re- 
quiring him  to  report  to  the  commanding  officer  thereof,  he  would 
be  in  command  of  the  post  by  virtue  of  his  commission  and  special 
assignment. 

(20-410.1,  J.  A.  G.,  May  9,  1914.) 


DETACHED   SERVICE:   With   the   Philippine    Constabulary;    act   of   April 
27,   1914;  Bureau  of  Insular  Affairs. 

The  act  of  August  24.  1912  (37  Stat.,  571),  which  prohibited,  under 
certain  circumstances,  detached  service  of  officei's  of  company  grade, 
provided  that  such  prohibition  should  not  apph" — 
"  to  detachment  or  detail  of  officers  for  duty  *  *  *  in  the  Philip- 
pine Constabulary  until  the  first  day  of  January,  nineteen  hundred 
and  fourteen,"  and  further  that — 

''  Hereafter  no  officer  holding  a  permanent  commission  in  the 
Army  with  rank  below  that  of  major  shall  be  detailed  as  assistant  to 
the  Chief  of  the  Bureau  of  Insular  Affairs,  or  *  *  *  as  chief  or 
assistant  chief  (Director  or  Assistant  Director)  of  the  Philip- 
pine Constabulary,  and  no  other  officers  of  the  Army  shall  hereafter 


378        DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE    GENEEAL, 

be  detailed  for  duty  with  the  said  constabulary  except  as  specifically 
pro^dded  bv  law." 

The  detached-service  law  of  April  27,  1914  (Pub.  No.  91,  p.  7), 
similarly  prohibited  the  detachment  of  officers  of  field  grade,  and 
further  provided  that  the  prohibition  should  not  apply — 
"  to  the  detachment  or  detail  of  officers  for  duty  in  connection  with 
the  construction  of  the  Panama  Canal  until  after  such  canal  shall 
have  been  formally  opened,  or  in  connection  with  the  Alaska  Road 
Commission  or  the  Alaska  Railroad  or  the  Bureau  of  Insular 
Affairs." 

Ilelcl^  that  the  detail  of  officers  of  the  Army  for  service  as  Chiefs 
of  the  Philippine  Constabulary  could  not  properly  be  said  to  be  de- 
tails for  duty  in  connection  with  the  Bureau  of  Insular  Affairs,  and 
hence  such  details  were  not  within  the  exception  in  the  act  of  April 
27,  1914.  Held^  therefore^  that  the  prohibitions  in  the  statute  applied 
to  details  of  officers  for  service  with  the  Philippine  Constabulary. 

(6-124,  J.  A.  G.,  May  2,  1914.) 


DETACHED    SERVICE:    Officer    above    the    grade    of    major    detailed    to 
vacancy  in  a  staff  department;  duty  with  troops. 

Section  26  of  the  act  of  February  2,  1901  (31  Stat.,  755),  pro- 
vided that  future  vacancies  in  the  staff  departments  falling  within 
the  purview  of  that  section  which  could  not  be  filled  by  promotion 
should  be  filled  by  detail  from  the  line  of  the  Army,  and  "that — 
"All  officers  so  detailed  shall  serve  for  a  period  of  four  years,  a't  the 
expiration  of  which  time  they  shall  return  to  duty  with  the  line,  and 
officers  below  the  rank  of  lieutenant  colonel  shall  not  again  be  eligible 
for  selection  for  duty  in  any  staff  department  until  they  shall  have 
served  two  years  with  the  line." 

The  act  of  April  27,  1914  (Pub.  No.  91,  63d  Cong.,  p.  7),  appro- 
priating for  the  Army  for  the  fiscal  year  1915,  provided  that>^ 
"After  September  first,  nineteen  hundred  and  fourteen,  in  time  of 
peace,  whenever  any  officer  holding  a  permanent  position  in  the  line 
of  the  Army,  with  the  rank  of  colonel,  lieutenant  colonel,  or  major, 
shall  not  have  been  actually  present  for  duty  for  at  least  two  years 
out  of  the  last  preceding  six  years  with  a  command  composed  of 
not  less  than  two  troops,  batteries  or  companies  of  that  branch  of 
the  Army  in  which  he  shall  hold  said  commission,  such  officer  shall 
not  be  detached  nor  permitted  to  remain  detached  from  such  com- 
mand for  duty  of  any  kind  except  as  hereinafter  specifically  pro- 
Abided  " — 

but  further  provided  that  nothing  in  said  act  should  prevent  the 
redetail  of  officers  above  the  grade  of  major  to  fill  vacancies  in  the 
various  staff  corps  and  departments,  as  provided  by  section  26  of 
the  act  of  February  2,  1901. 

An  officer  above  the  grade  of  major  was  serving  a  detail  in  a  staff 
department  under  section  26  of  said  act  of  February  2,  1901,  and 
would  not,  on  September  1,  1914,  have  been  on  duty  with  troops  for 
two  years  out  of  the  last  preceding  six  years. 

Held^  that  the  law  did  not  require  his  relief  from  detail  on  that 
date,  and  that,  if  relieved,  he  would  immediately  be  available  for 
redetail  to  fill  a  vacancy  within  the  purview  of  said  section  26,  irre- 


DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL.       379 

spective  of  his  former  detail,  and  irrespective  of  his  duty  status 
during  the  previous  six  years. 
(6-124,  J.  A.  G.,  May  11,  1914.) 


DONATIONS:  Of  property  and  services  to  the  United  States;  placing  im- 
provements. 

Private  parties  requested  permission  to  remove  a  wooden  picket 
fence  surrounding  a  national  cemetery  and  to  replace  the  same  by 
an  artistic  permanent  fence,  without  expense  to  the  United  States. 

Section  3679,  Revised  Statutes,  as  amended  by  the  act  of  February 
27,  1906  (34  Stat.,  49),  provided— 

"  Nor  shall  any  department  or  any  officer  of  the  Government  accept 
voluntary  service  for  the  Government  or  employ  personal  service  in 
excess  of  that  authorized  by  law,  except  in  cases  of  sudden  emer- 
gency involving  the  loss  of  human  life  or  the  destruction  of 
property." 

Ueld^  that  there  was  no  statute  which  prohibited  the  acceptance 
by  Government  officers  of  donations  of  personal  property  on  behalf 
of  the  United  States,  but  that  as  the  proposition  here  involved  the 
acceptance  of  both  personal  property  and  personal  services,  the 
offer  could  not  be  accepted,  as  it  would  amount  to  an  acceptance 
of  voluntary  services,  which  was  forbidden  by  the  statute;  but  that 
there  would  be  no  objection  to  the  acceptance  of  material  for  the 
construction  of  the  fence,  if  sufficient  funds  were  available  for  the 
removal  of  the  old  fence  and  the  construction  of  the  new  one. 

(80-111,  J.  A.  G.,  May  11,  1914.) 


EIGHT-HOUR  LAWS:  Public  works  of  the  United  States;  railroad  to  be 
used  in  the  construction  of  a  Government  work. 

By  the  terms  of  a  proposed  contract  a  railroad  company  was  to 
furnish  all  the  labor  and  materials  for  the  construction  of  a  spur 
track  from  its  main  line  to  the  site  of  a  Government  lock  and  dam 
under  construction,  and  to  transport  material  over  said  line  for  said 
Government  work.  The  company  was  further  required  to  procure 
the  necessary  right  of  way  for  the  spur  track  and  to  maintain  the 
track  for  a  period  sufficient  for  the  construction  of  the  lock  and 
dam,  not  exceeding  three  years.  It  was  further  provided  that  the 
company  should  remove  such  portion  of  the  spur  track  as  might  be 
on  the  Government  reservation  when  the  same  was  of  no  further 
use  for  said  construction.  A  specified  sum  was  named  as  compensa- 
tion for  the  construction  of  the  spur  track  and  for  the  transportation 
of  materials. 

Held,  that  as  the  title  to  the  railway  was  to  remain  in  the  railway 
company  and  the  track  was  not  intended  to  become  a  part  of  the 
public  work  for  the  construction  of  which  the  material  was  to  be 
transported  over  said  road,  the  eight-hour  law  of  August  1,  1892, 
as  amended  by  the  act  of  March  3,  1913  (37  Stat.,  726),  had  no 
application.  Held  further,  that  the  act  of  June  19,  1912  (37  Stat. 
137),  regarding  hours  of  labor  in  Government  contracts,  did  not 
apply,  as  said  act  expressly  provided  that  nothing  therein  should 


380       DIGEST   OF. OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEEAL. 

apply  "  to  contracts  for  transportation  by  land  or  water,"  and  as 
it  appeared  that  the  whole  purpose  of  the  contract  was  to  provide 
transportation  of  materials  between  the  terminus  of  the  railway  and 
the  lock  and  dam  site. 

(32-213,  J.  A.  G.,  May  1,  1914.) 


EiaHT-HOUR  LAWS:  Manufacture  of  tools  and  apppliances. 

An  opinion  was  desired  as  to  what  tools,  jigs,  and  fixtures  re- 
quired for  prosecuting  work  on  a  Government  contract  coming  under 
the  eight-hour  law  should  be  manufactured  under  said  law. 

Ileld^  that  the  manufacture  of  molds  and  forms  made  for  and 
used  solely  in  the  manufacture  of  particular  articles  coming  under 
the  restrictions  of  the)  eight-hour  law  should  be  regarded  as  a 
part  of  the  manufacture  of  the  particular  articles  and  as  coming 
under  the  provisions  of  said  law;  but  that  tools  which  might  be 
used  on  other  contracts  and  which  remain  the  property  of  the  con- 
tractor, formed  a  part  of  his  plant,  and  their  manufacture  should 
not  be  regarded  as  a  part  of  the  manufacture  of  the  particular  arti- 
cles covered  by  the  contract,  and  hence  were  not  within  the  eight- 
hour  law. 

(32-300,  J.  A.  G.,  May  11,  1914.) 


EIGHT-HOUR  LAWS:  Payment  for  overtime  work;  fixed  salaries. 

Certain  laborers  were  employed  in  the  Quartermaster  Department 
at  Jeffersonville,  Ind.,  beyond  the  legal  limit  of  eight  hours  in  one 
day,  in  packing  and  shipping  Government  supplies,  and  a  roll  was 
prepared  for  paying  for  this  overtime.  The  men  Avere  under  the 
impression  that  eight  hours  constituted  a  day's  w^ork,  and  had  been  in- 
formed that  "  if  permissible  under  the  law  "  an  eifort  would  be  made 
to  compensate  them  for  the  additional  service.  They  were  not  spe- 
cifically appropriated  for  by  law  but  were  paid  annual  salaries  from 
a  lump-sum  appropriation. 

Held,,  that  section  3738,  Revised  Statutes,  providing  that — 
"  Eight  hours  shall  constitute  a  day's  work  for  all  laborers,  workmen, 
and  mechanics  who  may  be  employed  by  or  on  behalf  of  the  United 
States,"  does  not  amount  to  a  contract  between  the  Government  and 
its  laborers,  but  is  in  the  nature  of  a  direction  by  the  Government  to 
its  agents  {United  States  v.  Martin,,  94  U.  S.,  400)  ;  that  the  Govern- 
ment was  entitled  to  the  full  service  of  these  men;  and  that  they 
could  not  be  allowed  anvthing  bevond  their  stated  compensations. 

(32-232,  J.  A.  G.,  May  28,  1914.) 


IMPROVEMENTS:   Roadways   on   land   fronting   national   cemeteries;   title 
of  the  United  States;  boundaries. 

It  was  proposed  to  improve  the  frontage  of  two  national  cemeteries 
within  the  corporate  limits  of  cities  where  the  same  abutted  upon 
public  highways,  by  the  construction,  in  one  case,  of  a  concrete  walk 
with  parking  on  either  side  to  be  set  in  gi*ass,  and  in  the  other  case 


DIGEST   OF    OPINIONS    Of    THE    JUDGE   ADVOCATE   GEXEKAL.       381 

by  the  construction  of  a  sidewalk.  The  deeds  to  the  United  States  for 
the  Lmds  in  the  national  cemeteries,  described  the  same  by  courses 
and  distances,  running  to  and  along  the  side  lines  of  the  road  or 
street  on  which  they  abutted.  There  was  not  sufficient  land  within 
the  lines  outside  of  the  cemetery  inclosures  upon  which  to  construct 
the  improvements,  so  that  they  would  have  to  rest  partly  or  wholly 
iij)on  the  atl joining  highway. 

The  appropriation  for  maintaining  and  improving  national  ceme- 
teries in  the  sundry  civil  act  of  June  23,  1913  (38  Stat..  31),  provided 
that  no  part  of  the  sum  appropriated — 

"  shall  be  used  for  repairing  any  roadway  not  owned  by  the  United 
States  within  the  corporate  limits  of  any  city,  town,  or  village." 

Held.,  that  where  land  is  described  by  courses  and  distances,  begin- 
ning at  a  point  and  running  to  a  road  or  highway  and  thence  on  a 
line  Avith  the  same,  the  measurements  being  exact,  and  extending 
only  to  the  margin  of  such,  road  or  highway,  the  title  to  no  part  of 
the  road  passes,  and  the  grantee  can  claim  nothing  beyond  the  boun- 
dary line  described  (5  Cyc,  906  n. ;  8  Cent.  Dig.,  Boundaries,  §  123)  ; 
that  the  Government  therefore  did  not  own  any  part  of  the  roadways 
upon  which  the  national  cemeteries  abutted,  and  that  the  appropria- 
tion for  the  maintenance  and  improvement  of  national  cemeteries 
Avas  not  available  for  the  construction  of  the  proposed  improvements. 

(80-412.2,  J.  A.  G.,  May  11  and  26,  1911.) 


LIVING  EXPENSES:  Headquarters'  clerk  on  temporary  duty;  flat  or  com- 
muted rate  for  living  expenses. 

A  headquarter's  clerk  submitted  an  itemized  bill  amounting  to 
$31  to  the  Auditor  for  the  War  Department  for  reimbursement  for 
his  living  expenses  while  on  temporary  duty  with  the  headquarters 
of  the  second  division  at  Texas  City,  Tex.,  the  same  being  the  full 
amount  allowed  by  Army  regulation  for  such  expenses  for  the  period 
covered  by  the  claim.  On  submission  of  the  question  as  to  whether 
or  not  a  regulation  could  be  made  which  would  authorize  reimburse- 
ment for  these  expenses  at  a  flat  or  fixed  rate  contingent  only  upon 
the  performance  of  duty  under  competent  orders. 

Held.,  that  as  the  pay  of  this  clerk  as  well  as  that  of  all  other  clerks 
covered  by  the  appropriation  for  headquarters  of  divisions,  etc.,  was 
fixed  by  law,  the  same  could  not  be  increased  or  decreased  by  any  reg- 
ulation of  the  department,  and  that  it  would  not  be  competent  to  pre- 
scribe a  fiat  rate  of  reimbursement  by  way  of  commutation  of  actual 
expenses  contingent  only  upon  the  performance  of  duty  under  com- 
petent orders  without  legislation  authorizing  the  same. 
'16-020,  J.  A.  G.,  May  6,  1911.) 


MEDIC  All  CORPS:  Reserve  officers  of  the  Organized  Militia  belonging  to. 

A  first  lieutenant  in  the  Medical  Corps  of  the  organized  militia 
of  Maryland  was  also  a  member  of  the  Reserve  Corps  of  the  Army, 
and  was  about  to  receive  orders  in  the  latter  capacity  to  proceed  to 
Texas  City,  Tex.,  for  active  duty  with  the  United  States  Army.  At 
the  time  he  was  on  leave  from  service  with  the  militia  attending  the 
Army  Medical  School  at   Fort  Leavenworth,  Kans.     Section   8  of 


382        DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL. 

the  act  of  April  23,  1908  (35  Stat:,  68),  provided  that  in  emergencies 
the  Secretary  of  War  might  order  officers  of  the  Medical  Reserve 
Corps  to  active  duty  in  the  service  of  the  United  States,  subject  to 
certain  provisions  which  did  not  preclude  service  with  the  militia 
or  with  the  A-olunteer  troops  of  the  United  States  or  any  service  with 
the  United  States  in  any  other  capacity,  but  said  act  also  provided 
that — 

"  when  so  serving  with  the  militia  or  with  volunteer  troops,  or  when 
employed  in  the  service  of  the  United  States  in  any  other  capacity, 
an  officer  of  the  Medical  Reserve  Corps  shall  not  be  subject  to  call 
for  duty  under  the  terms  of  this  section." 

Held^  that  the  statute  was  intended  to  permit  officers  of  the  Medical 
Reserve  Corps  not  designated  for  active  duty  to  serve  with  the  militia 
of  the  State  while  under  the  jurisdiction  of  the  State  as  well  as  when 
called  into  active  service  of  the  United  States,  and  that  the  officer 
should  be  regarded  as  serving  with  the  militia  when  his  relation  to 
the  militia  is  such  that  he  is  subject  to  orders  as  an  officer  of  the 
same  for  any  militia  duty  pertaining  to  his  office  therein,  and  that 
while  this  relation  of  service  continued  he  was  ineligible  for  designa- 
tion on  active  duty  with  the  Medical  Corps  of  the  Army ;  hut  held 
further^  that  if  gi-anted  a  leave  of  absence  for  the  pui-pose  of  accept- 
ing active  duty  as  a  member  of  the  Medical  Reserve  Corps,  he  would, 
during  such  period  of  absence,  be  eligible  to  be  called  into  active 
service,  as  specified  in  said  act  of  April  23,  1908. 

(e-227.4,  J.  A.  G.,  May  19,  1914.) 


NUnSES:  Ijongevity  pay;  credit  for  service  as  contract  nurses. 

A  nurse  in  the  Hospital  Corps  of  the  Army  had,  previous  to  her 
appointment  as  such,  served  a  period  with  the  Ai-my  as  a  contract 
nurse,  during  which  time  she  was  enrolled  by  the  American  Red 
Cross  to  assist  the  Army  Nurse  Corps  in  emergencies. 

The  act  of  March  23,  1910  (36  Stat.,  249),  provided  that  female 
nurses  of  the  Nurse  Corps  should  receive — 

"  fifty  dollars  per  month  for  the  first  period  of  three  years'  service ; 
fifty-five  dollai-s  per  month  for  the  second  period  of  three  years' 
service;  sixty  dollars  per  month  for  the  third  period  of  three  yeare' 
service ;  and  sixty-five  dollars  p)er  month  after  nine  years'  service  in 
said  Nurse  Corps." 

Held^  that  the  service  required  to  make  up  the  three-year  periods 
for  purposes  of  pay  must  be  service  in  the  Nurse  Corps,  and  that 
the  prior  service  as  contract  nurse  could  not  be  counted  in  making 
lip  the  three-year  periods  for  the  purpose  of  computing  this  nurse's 

pay. 

(6-227.2,  J.  A.  G.,  May  14,  1914.) 


NUHSES:  Payment  of  reserve  called  into  actual  service;  exceeding  amount 
appropriated  for;  pay  of  Army  as  one  fund. 

Section  19  of  the  act  of  February  2,  1901  (31  Stat.,  753),  provided 
that — 

"The  Nurse  Corps  (female)  shall  consist  of  one  superintendent 
*  *  *  and  of  as  many  chief  nurses,  nurses,  and  reserve  nurses  as 
mav  be  needed." 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE    GENERAL.       383 

The  act  of  March  2,  1913  (37  Stat.,  708),  appropriated  for  the 
fiscal  year  1914  "for  one  hundred  and  fifty  nurses  (female), 
$10(),030,"  and  the  act  of  April  27,  1914  (Pub.  No.  91,  63d  Cong., 
p.  6),  appropriated  for  the  fiscal  year  1915  a  like  amount  for  pay  of 
"nurses  (female)"  without  specifying  any  number,  which  amount 
was  only  sufficient  to  pay  the  150  nurses  at  the  rates  authorized  by 
law.  Both  acts  contained  a  provision  that  all  money  appropriated 
for  the  "  Pay  of  the  Army  "  and  "  Miscellaneous,"  except  the  mileage 
appropriation,  "  shall  be  disbursed  and  accounted  for  by  officers  of 
the  Qpartermaster  Corps  as  pay  of  the  Army,  and  for  that  purpose 
shall  constitue  one  fund." 

Tleld^  that  as  appropriation  was  made  for  the  fiscal  year  1914  for 
only  150  nurses,  that  number  could  not  be  exceeded,  and  that  under 
the  terms  of  the  law,  reserve  nurses  if  called  into  active  service  in 
excess  of  the  number  appropriated  for  during  said  fiscal  year,  could 
not  be  paid  from  the  appropriation  for  the  "  Pay  of  the  Army." 

Held  further^  that  the  effect  of  the  proviso  regarding  the  use  of 
the  appropriations  under  the  heads  of  "Pay  of  the  Army"  and 
"  Miscellaneous,"  as  one  fund,  was  to  permit  the  use  of  balances  of 
items  under  said  appropriations  to  supplement  items  that  might  be 
deficient  (3  Comp.  Dec.  604),  and  as  no  limit  was  placed  upon  the 
number  of  nurses  by  the  act  of  April  27,  1914,  supra,  the  appropria- 
tion for  nurses  might  be  supplemented  by  unused  balances  of  items 
under  said  general  heads  of  appropriation  should  said  appropriation 
prove  insufficient  by  reason  of  the  employment  of  additional  nurses. 

(5-241,  J.  A.  G.,  May  16  and  29,  1914.) 


RETIRED   OFFICERS:   Assignment  to   staff  duty;   command  and  service 
with  troops. 

Section  1255,  Revised  Statutes,  provided  that — 

"Officers  retired  from  active  service  shall  be  withdrawn  from 
command     *     *     *      " — 
and  the  act  of  April  23,  1904  (33  Stat.,  264) ,  provided  that— 

"The  Secretary  of  War  may  assign  retired  officers  of  the  Army, 
with  their  consent,  to  active  duty  in  recruiting  *  *  *  and  to 
staff  duties  not  involving  service  with  troops ;  and  such  officers  while 
so  assigned  shall  receive  the  full  pay  and  allowances  of  their  re- 
spective grades." 

The  question  having  been  presented  as  to  whether  retired  officers 
could  be  utilized  for  duty  as  acting  quartermasters  at  military  posts 
from  which  the  garrisons  had  been  temporarily  withdrawn,  but  leav- 
ing at  each  post  a  detachment  of  enlisted  men  of  the  Quartermaster 
Corps. 

Held,  that  said  Section  1255,  Revised  Statutes,  withdrew  retired 
officers  from  command,  and  that  as  a  certain  number  of  enlisted  men 
of  the  Quartermaster  Corps  was  to  be  left  at  each  post,  it  was  clear 
that  the  service  contemplated  would  involve  a  command,  and  would 
also  be  service  with  troops.  Held  further,  that  the  services  of  re- 
tired officers  could  not  be  thus  availed  of. 

(88-600,  J.  A.  G.,  May  4,  1914.) 


384        DIGEST   OF   OPINIOXS   OF    THE   JUDGE   ADVOCATE   GENEEAL. 

TAXATION:  Personal  tax  and  jury  duty;  soldiers  in  the  reserve. 

Information  was  desired  as  to  whether,  under  the  recent  legislation 
increasing  the  enlistment  period  in  the  Army  to  seven  years,  the  last 
four  of  which  should  be  in  the  reserve,  a  soldier,  during  the  reserve 
period,  was  exempt  from  poll  and  road  tax  and  from  jury  duty. 

Held,  that  the  status  of  soldiers  of  the  reserve,  so  far  as  respects 
the  matter  under  consideration,  was  similar  to  that  of  retired  officers; 
that  w^hile  the  status  continued  they  had  no  active  duty  to  perform 
which  would  render  a  taxation  on  their  polls  or  the  requirement  of 
jury  duty  an  interference  with  their  relation  to  the  Federal  Govern- 
ment ;  and  that  during  such  period  they  were  liable  for  such  tax  and 
duty,  except  in  so  far  as  the  laws  of  the  particular  State  where  they 
might  reside  should  otherwise  provide. 

(90-143,  J.  A.  G.,  May  12,  1914.) 


TRANSPORTATION:  Cost  of,  where  articles  were  purchased  for  a  particu- 
lar use. 

Certain  fencing  material  was  procured  abroad  for  use  of  the 
Mounted  Service  School  at  Fort  Kiley,  Kans.,  and  shipped  from  New 
York,  N.  Y.,  to  said  fort  on  a  bill  of  lading  which  indicated  that  the 
freight  charges  were  to  be  paid  from  funds  of  the  Mounted  Service 
School. 

Held,  that  the  freight  charges  should  be  regarded  as  a  part  of  the 
cost  of  procuring  the  material,  and  so  payable  from  the  appropria- 
tion covering  the  purchase,  and  not  from  the  appropriation  for  the 
transportation  of  the  Army  and  its  supplies;  but  that  it  would  have 
been  otherwise  if  the  property  had  been  purchased  and  delivered  for 
general  uses  of  the  Army  and  afterwards  transported  as  military 
stores  to  the  place  where  needed.  See  Opinion  July  21,  1905  (Dig. 
Op.,  J.  A.  G.,  1912,  p.  44). 

(5-213,  J.  A.  G.,  May  6,  1914.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  Office  of  the  Judge  Advocate  General.) 

DAMAGES:  Liquidated;  measure  of  damages  after  supplemental  contract. 

A  contract  was  entered  into  to  furnish  and  deliver  at  the  place  of 
manufacture  certain  generator  sets,  converters,  transformers,  and  a 
voltage  regulator  at  prices  set  opposite  each  item.  The  contract  pro- 
vided that  each  completed  article  before  acceptance  should  be  sub- 
mitted at  the  factory  to  a  test  to  show  its  compliance  with  the  specifi- 
cations and  capability  of  performing  the  work  for  which  it  was 
intended.  The  contractor  was  obligated  to  make  "  complete  delivery 
of  all  items  covered  by  his  contract  *  *  *  within  150  days  after 
notification  "  of  the  approval  of  his  contract  by  the  Chief  of  Engi- 
neers. It  was  recited  that  time  should  be  considered  "  as  an  essential 
feature  of  this  contract,"  and  it  was  agreed  that  as  the  amount  of 
damages  for  delay  beyond  the  time  limit,  exclusive  of  expenses  of 
inspection  and  superintendence,  was  "  difficult,  if  not  impossible,  of 


DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE    GENEEAL.       385 

definite  ascertainment  and  proof,"  the  amount  of  such  damages  should 
be  liquidated  and  agreed  as  $25  for  each  day's  delay  beyond  said 
time  limit. 

Some  time  after  the  date  fixed  for  the  completion  of  deliveries  a 
certain  part  of  the  machinery  was  submitted  for,  but  failed  to  meet, 
the  test  required  by  the  specifications.  The  defects  were  waived  in 
writing  in  the  interests  of  the  Government  and  in  accordance  with  the 
contract,  and  the  machinery  was  accepted.  A  supplemental  contract 
Avas  then  made  providing  for  the  shipment  of  the  machinery  so  ac- 
cepted and  for  payment  therefor  at  contract  rates  less  10  per  cent 
retained  and  liquidated  damages  to  the  date  of  the  supplemental 
contract.  Thereafter  complete  delivery  was  made,  and  it  was  pro- 
posed, on  final  settlement,  to  pay  the  10  per  cent  retained  without 
further  deduction  for  liquidated  damages. 

Held^  that  th-e  agreed  measure  of  damages  for  delay  in  delivery 
contemplated  damages  for  the  whole  lot  of  the  machinery,  and  that 
the  contract  fixed  no  measure  of  damages  upon  any  other  basis  or 
for  any  other  kind  of  delivery  than  the  delivery  of  all  the  machin- 
ery ;  that  the  amount  specified  for  liquidated  damages  could  not  rep- 
resent damages  resulting  from  a  delay  in  delivery  of  a  part  of  the 
machinery  unless  all  the  machinery  was  part  of  one  unit  and  incapa- 
ble of  separate  use ;  that  inasmuch  as  all  but  a  small  part  of  the  ma- 
chinery was  delivered  at  the  date  of  the  supplemental  contract,  the 
measure  of  damages  so  fixed  could  have  no  application  to  delay  after 
that  date;  and  that  when  any  of  the  machinery  was  delivered,  ac- 
cepted and  used  by  the  Government,  the  measure  of  damages,  figured 
on  the  basis  of  a  delay  in  delivery  of  the  whole  lot,  had  no  applica- 
tion to  delays  in  the  delivery  of  the  remaining  items,  as  to  which 
items  the  contract  fixed  no  measure  of  damages,  liquidated  or  other- 
wise. Held^  therefore,  that  the  contractor  be  paid  without  deduction 
for  liquidated  damages  after  the  supplemental  contract,  but  retain- 
ing the  estimated  amount  of  actual  damages. 

(Comp.  Geo.  E.  Downey,  May  5,  1914.) 


HEAT   AND   LIGHT:    For   quarters   occupied   by   officers   and   a    civilian; 
division  of  benefits. 

Two  officers  of  the  Army  were  on  duty  at  Kansas  City,  Mo., 
under  competent  orders  entitling  them  to  commutation  of  quarters. 
They  occupied  a  residence  containing  seven  rooms  with  its  own  indi- 
vidual heating  plant,  and  the  gas  and  electric  current  consumed  for 
light  were  registered  by  separate  meters.  A  civilian  shared  in  the 
occupancy  of  a  part  of  the  quarters,  paying  a  part  of  the  living 
expenses  and  receiving  equal  benefits  from  the  electric  light  furnished 
for  the  house.  A  bill  was  presented  by  a  local  company  for  electric- 
light  current  furnished  for  the  entire  building. 

Ileld^  that  there  was  no  authority  for  conferring  benefits  upon 
civilians  through  payments  authorized  by  the  Government  for  the 
benefit  of  Army  officers;  that  the  voucher,  being  an  entirety  cover- 
ing light  furnished  for  all  the  rooms,  could  not  be  paid  without  the 

93G68°— 17 25 


386        DIGEST    OF    OPIXIOXS   OF   THE   JUDGE   ADVOCATE   GENERAL. 

certainty  of  paving  for  some  service  for  the  benefit  of  a  civilian, 
and.  as  the  latter  benefit  could  not  be  separated,  payment  of  the 
voucher  as  presented  was  not  authorized ;  but  that  if  a  separate 
voucher  were  presented  for  such  service  for  rooms  occupied  exclu- 
sively by  the  officers,  payment  therefor  might  properly  be  made. 
(Comp.  Geo.  E.  Downey,  May  8.  1914.) 


QTJAHTERS:  On  Army  transport;  commutation;  change  of  orders  nunc  pro 
tunc. 

An  officer  was,  by  competent  orders,  relieved  from  assignment 
to  his  company,  placed  on  the  unassigned  list,  and  directed  to  "  pro- 
ceed to  Galveston,  Tex.,  for  duty  on  the  transport  indicated ''  in  his 
orders.  After  having  entered  upon  the  duty  in  pursuance  of  these 
orders  the  officer  requested  that  the  same  be  amended  so  that  he  would 
]je  allowed  commutation  of  quarters  and  light  and  heat,  and  said 
orders  were  accordingly  amended  by  the  War  Department  so  as  to 
show  that  he  was  relieved  from  his  company  and  placed  on  the 
unassigned  list,  and  further  made  to  read  as  follows: 

'■  Will  proceed  to  Galveston,  Tex.,  take  station  at  that  place,  and 
report  in  person  to  the  depot  quartermaster  in  charge  of  the  Army 
transport  service  at  that  place  for  assignment  to  duty." 

It  did  not  apjpear  that  the  amended  order  made  any  change  in  the 
duty  status  of  the  officer,  and  when  the  amendment  was  made  he  had 
already  proceeded  to  Galveston  and  taken  station  on  the  transport  to 
which  he  had  been  assigned  by  the  prior  order. 

Held,  that  the  orders  could  not  change  the  officer's  status  so  as  to 
afi^ect  his  pay  and  allowances  simply  by  declaring  the  nature  of  the 
service,  but  that  the  facts  constituting  the  service  were  controlling, 
and  the  conditions  could  not  by  orders  be  made  otherwise  than  what 
they  were  in  fact :  that  the  transport  remained  in  the  harbor  at  Gal- 
veston, or  the  further  fact  that  his  family  was  not  permitted  to 
occupy  quarters  with  him  on  board,  was  not  material ;  and  that  the 
claim  for  commutation  should  be  disallowed.    20  Comp.  Dec,  2&4. 

(Comp.  Geo.  E.  Downey,  May  11.  1914.) 


RAILROADS:  Government-aided;  land-grant  deduction  from  extra  fares  on 
special  trains. 

An  officer  of  the  Army  travelled  over  land-grant  railroads  from 
Seattle,  Wash.,  to  San  Francisco,  Cal.,  on  a  special  train  for  which 
an  extra  charge  of  So  was  made.  The  Auditor  for  the  War  Depart- 
ment, in  making  settlement,  deducted  from  this  extra  charge  on 
account  of  land  grant. 

Held,  that  the  transportation  to  be  furnished  to  the  United  States 
under  the  terms  of  the  act  making  the  land  grant  was  not  limited 
to  service  on  any  particular  train,  and  that  the  extra  fare  for  trans- 
portation upon  the  train  by  which  the  officer  traveled  was  a  part  of 
the  regular  fare  or  charge  for  transportation  and  subject  to  the  land- 
grant  deduction. 

(Comp.  Geo.  E.  Downey,  May  21,  1914.) 


DIGEST   OF   OPINIONS   OF    THE   JUDOE   ADVOCATE   GENERAL.       387 

TAXATION:    Of    Government    agencies;    fee    for    inspecting'    mouiit    of    an 
officer  transported  by  the  Government, 

A  horse  belongino;  to  a  retired  Army  officer  was  in  transit  at  Gov- 
ernment expense  from  Fort  Laredo,  Tex.,  to  Mobile,  Ala.,  the  officer's 
home.  At  New  Orleans,  La.,  the  horse  was  inspected  by  a  State 
official  and  a  fee  of  $5  charged  therefor,  which  the  railroad  company 
furnishing  the  transportation  paid.  The  inspection  was  considered 
necessary  under  State  laws,  because  the  animal  was  not  accompanied 
by  a  proper  health  certificate.  The  horse  was  the  private  mount  of 
the  officer,  who  was  proceeding  home  under  orders  after  his  retire- 
ment. On  claim  for  reimbursement  of  th^  amount  paid  as  inspec- 
tion fee — 

Tleld^  that  the  horse  was  to  all  intents  and  purposes  Government 
property  for  transportation ;  that  it  would  not  l)e  reasonable  or  proper 
that  any  State  official  should  interfere  with  the  movements  of  the 
Army  by  requiring  an  inspection  of  animals  shipped  by  the  Govern- 
ment through  its  territory;  that  the  inspection  fee,  if  a  proper  charge 
at  all,  was  a  charge  against  the  United  States;  and  that  the  right  of 
the  State  to  levy  such  a  charge  could  not  be  recognized.  2  Comp. 
Dec.  375. 

(Comp.  Geo.  E.  Downey,  May  8,  1914.) 


TELEGEAPH  SERVICEl:  Charges  for;  night  and  lettergram  rates. 

The  Postal  Telegraph-Cable  Co.  presented  a  voucher  representing 
the  difference  between  the  night  lettergram  rate  and  the  rate  for  night 
messages  on  two  telegrams  sent  from  points  in  the  United  States  to 
the  United  States  Immigration  Service  at  Vancouver,  British  Colum- 
bia, and  Montreal,  Canada,  respectively.  These  telegrams  were 
marked  by  the  sending  officers  as  "  night  lettergrams,"  for  which  f onn 
of  message  the  charge  was  cheaper  when  the  messages  approached  50 
words  or  more  than  the  ordinary  night-message  rate,  but  owing  to  the 
small  number  of  words  in  these  messages  the  night  rate  would  have 
been  less  than  the  lettergram  rate. 

Held,  that  the  mistake  of  the  sending  officers  in  wrongly  designat- 
ing the  type  of  message  did  not  change  the  character  of  the  service 
actually  rendered  and  did  not  entitle  the  sending  company  to  charge 
an  excessive  rate  for  the  messages  as  sent  nor  to  charge  an  amount  in 
excess  of  the  rate  for  night  messages;  that  the  mistake  in  designetion 
did  not  affect  the  charges  of  the  connecting  carrier,  the  Canadian 
Telegraph  Co.,  as  the  rates  of  that  company  were  alike  for  night  mes- 
sages and  lettergrams;  and  that  the  sole  result  of  the  mistake  was  to 
cause  charges  to  be  erroneously  entered  on  the  books,  for  which  mis- 
take the  transmitting  company  was  as  much  responsible  as  the  sending 
officers. 

(Comp.  Geo.  E.  Downey,  Apr.  22,  1914.) 


TRAlSrSPORTATION:  Hire  of  automobile  for  officer  traveling  on  a  mileage 

status. 

A  recruiting  officer  of  the  Army  was  directed  to  travel  under  or- 
ders entitling  him  to  mileage  from  Mem(phis.,Tenn.,  to  Pittsburg  Land- 
ing, Tenn.    A  portion  of  the  journey  was  made  by  rail,  but  no  such 


388        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

accommodation  being  available  for  the  remainder  of  the  journey  he 
liired  an  automobile  for  the  purpose. 

The  mileage  law  of  January  12,  1906  (34  Stat.,  246),  in  force  at  the 
time,  provided  that  officers  of  the  Army  traveling  under  competent 
orders  without  troops  should  be  paid  7  cents  per  mile,  and  no  more, 
but  that  they  might  apply  to  the  Quartermaster  Department  for  a 
transportation  request  for  the  journey,  and  if  the  same  were  fur- 
nished it  should  be  charged  against  their  mileage  accounts  at  the  rate 
of  3  cents  per  mile  for  the  transportation  furnished.  The  Army  ap- 
propriation act  of  March  2,  1913  (37  Stat.,  716),  under  the  head  of 
"Transportation  of  the  Army  and  its  supplies,"  contained  the  fol- 
loAving  provision : 

'"  For  the  purchase,  hire,  operation,  maintenance,  and  repair  of 
such  harness,  wagons,  carts,  drays,  and  other  vehicles  as  are  required 
for  the  transportation  of  troops  and  supplies,  and  for  official,  mili- 
tary, and  garrison  purposes;" 

Held,  that  the  mileage  law  was  not  repealed  by  the  above  appro- 
priation act,  that  said  law  fixed  the  full  measure  of  allowance  to 
officers  traveling  on  a  mileage  status,  and  that  the  officer  could  not  re- 
fuse mileage  and  demand  reimbursement  for  the  hire  of  special  means 
of  transportation.  17  Comp.  Dec,  204.  T\niether  the  Quartermaster 
Department  could  furnish  an  officer  special  means  of  transportation 
and  pay  for  the  same  out  of  the  appropriation  for  the  transportation 
of  the  Army  and  its  supplies,  charging  him  3  cents  a  mile  for  the  dis- 
tance, was  not  involved  in  the  submission,  and  was  not  decided. 

(Compt.  Geo.  E.  Downey,  Dec.  16,  1913.) 


DECISIONS   OF   THE   COURTS. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

CONTRACTS:  Damages  occasioned  by  misstatement  in  specifications;  war- 
ranty. 

A  contract  for  the  repair  of  a  dam  called  for  the  excavation  of 
material  immediately  above  it.  The  specifications  attached  to  the 
contract  stated  that  ithe  dam  was  "  backed  up  for  about  50  feet  with 
broken  stone,  saAvdust,  and  sediment  to  a  height  within  2  or  3  feet  of 
the  crest,"  and  that  bidders  were  expected  to  visit  tlie  locality  of  the 
work,  make  their  own  estimates  of  the  facilities  and  difficulties  at- 
tending the  execution  of  the  proposed  contract  and  obtain  informa- 
tion necessary  to  make  intelligent  proposals.  As  the  work  proceeded 
it  developed  that  the  space  above  the  dam  was  occupied,  not  as  stated 
in  the  specifications,  but  partly  by  soft  slushy  sediment  and  partly 
by  cribwork  consisting  of  sound  logs  filled  with  stones.  Suit  was 
brought  for  damages  suffered  by  the  contractors  which  would  not 
have  occurred  had  the  dam  been  backed  with  the  material  stated  in 
the  specifications. 

Held^  that  the  positive  statement  in  the  specifications  regarding 
the  character  of  material  back  of  the  dam  must  be  taken  as  true  and 
binding  upon  the  Government,  which  must  sustain  the  loss  resulting 
from  the  mistaken  i-epresentation  rather  than  the  contractors,  who 
had  a  right  to  rely  upon  the  representation  in  the  specifications  with- 


DIGEST    OF    OPINIONS   OF   THE    JUDGE   ADVOCATE    GENERAL.       389 

out  an  investigation  to  prove  its  falsity,  and  that  judgment  should 
be  entered  for  damages  incurred  because  of  the  dilference  in  char- 
acter of  material  found  back  of  the  dam  from  that  described  in  the 
specifications.  Reversing  the  same  case  in  47  Court  of  Claims,  236 
(W.  D.  BuL  No.  12,  1912,  p.  18). 

{UoUerhach  d-  May  v.  United  /States,  U.  S.  Supreme  Court.  Apr.  6, 
1914.) 

COURTS-MARTIAL:  Jurisdiction  of  civil  courts;  correction  of  errors. 

A  petty  officer  of  the  Navy  was  tried  and  convicted  by  a  naval 
court-martial  on  charges  of  scandalous  conduct  tending  to  the  de- 
struction of  good  morals,  and  was  sentenced  to  three  years'  imprison- 
ment to  be  followed  by  dishonorable  discharge  with  forfeiture  of 
pay.  The  sentence  was  duly  approved  b}^  the  Secretary  of  the  Navj'. 
A  petition  for  a  writ  of  habeas  co7'pus  was  presented  alleging,  as 
the  only  ground,  that  the  judge  advocate  of  the  court-martial  was 
allowed  to  be  present  for  a  short  time  during  a  closed  session  of  the 
court,  contrary  to  section  2  of  the  act  of  July  27,  1892  (27  Stat.,  277). 

Held,  that  civil  courts  are  in  no  sense  appellate  tribunals  for  the 
revision  of  the  procedure  of  courts-martial,  and  will  not  interfere 
with  the  judgment  of  such  a  court  if  it  appears  that  it  had  juris- 
diction of  the  person  and  of  the  subject  matter  before  it;  and  that 
errors  of  procedure  in  military  records  can  be  corrected  only  by  the 
proper  military  authorities.  Held  further,  that  the  statute,  the  vio- 
lation of  which  was  complained  of,  related  to  procedure  and  not  to 
jurisdiction,  and  that  its  nonobservance  was  a  matter  for  revision 
by  military  authority  and  not  for  revision  by  the  civil  courts.  The 
writ  was,  therefore,  denied. 

(Ex-parte  Tucker,  U.  S.  District  Court,  Jan.  21,  1913,  212  Fed. 
Rep.,  569.) 

MILITIA:  Transportation  of  the  organized,  to  and  from  joint  encampment; 
land-grant  deduction  for  transportation  of  troops  of  the  United  States 
Army. 

A  land-grant-aided  railroad  transported,  on  Government  request, 
members  of  the  organized  militia  of  the  States  of  Alabama  and  Mis- 
sissippi from  points  in  said  respective  States  to  and  from  Macon, 
Ga.,  for  the  purpose  of  their  participating  in  the  joint  maneuver 
encampment  with  a  portion  of  the  Regular  Army,  pursuant  to  sec- 
tion 15  of  the  act  of  January  21,  1903,  as  amended  bv  section  9  of 
the  act  of  May  2.7,  1908  (35" Stat.,  402).  The  Auditor  allowed  the 
claim  for  transportation  service  at  the  usual  rates,  but  deducted  for 
land  grant  on  the  theory  that  the  said  militia  were  troops  of  the 
United  States.  The  railroad  company  sued  for  the  amount  thus 
withheld. 

Section  15  of  the  said  act  of  January  21,  1903,  as  amended,  pro- 
vided for  the  participation  of  the  organized  militia  of  any  state  at 
the  request  of  the  governor  thereof  in  the  encampment  maneuvers 
and  field  instruction  of  any  part  of  the  Regular  Army,  and  provided 
also  for  their  pay,  subsistence,  and  transportation.  It  further  pro- 
vided that  the  command  of  the  post  or  camp  should  remain  in  the 
regular  commander  of  the  post,  without  regard  to  the  rank  of  the 
militia  officers  temporarily  encamped  thereat. 


390        DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL, 

Ileld^  that  the  organized  militia  of  the  several  states  do  not  become 
troops  of  the  United  States  in  the  meaning  of  the  land-grant  acts 
until  called  into  the  service  of  the  United  States  pursuant  to  the 
Constitution;  that  the  President  did  not  call  forth  the  said  militia 
for  the  encampment  mentioned,  and  he  was  not  their  commander  in 
chief  while  they  were  there ;  and  that,  not  being  troops  of  the  United 
States,  the  railroad  company  was  entitled  to  full  fares  for  their 
transportation  without  land-grant  deduction. 

{Alabama,  etc.,  R.  R.  Co.  v.  U.  S.,  Ct.  of  Cls.,  May  18,  1914, 
No.  31872.) 

PARDON:  Before  conviction;  effect  of  refusal  to  testify  after  pardon. 

The  city  editor  and  a  reporter  of  a  New  York  newspaper  refused 
to  answer  questions  before  a  grand  jury  concerning  the  sources  of 
their  information  which  were  made  the  bases  of  certain  articles 
published  in  said  newspaper  regarding  customs  frauds,  on  the  ground 
that  the  disclosure  would  tend  to  incriminate  them.  Later  the  Presi- 
dent issued  full  pardons  to  both  of  them,  covering  any  possible  crime 
which  might  be  connected  with  said  matter.  They  refused  to  accept 
this  pardon  and  persisted  in  their  refusal  to  answer.  The  grand 
jury  thereupon  presented  them  for  contempt. 

Held,  that  the  President  might  pardon  anyone  who  had  never  been 
charged  with  or  convicted  of  a  crime,  and  the  person  pardoned  would 
be  thereby  deprived  of  the  right  to  claim  the  privilege  that  his 
testimony  regarding  such  crime  might  incriminate  him,  without 
reference  to  whether  he  accepted  the  pardon  or  not.  Held  further, 
that  the  respondents  in  refusing  to  answer  the  questions  concerning 
the  sources  of  their  information  after  such  pardon,  were  guilty  of 
contempt,  and  they  were  fined  accordingly. 

{V.  S.  V.  Burdick,  et  al.,  U.  S.  Dist.  Ct.,  211  Fed.,  492.) 


PAY  OF  THE  ARMY:  Increase  for  service  outside  the  United  States  and 
contiguous  territories;  service  in  Porto  Rico. 

The  act  of  June  30,  1902  (32  Stat.,  512),  provided— 

"  That  hereafter  the  pay  proper  of  all  commissioned  officers  and 
enlisted  men  serving  beyond  the  limits  of  the  States  comprising  the 
Union  and  the  Territories  of  the  United  States  contiguous  thereto 
shall  be  increased  ten  per  centum  for  officers  and  twenty  per  centum 
for  enlisted  men  over  and  above  the  rates  of  pay  proper  as  fixed  by 
law  for  time  of  peace,  and  the  time  of  such  service  shall  be  counted 
from  the  date  of  departure  from  said  States  to  the  date  of  return 
thereto." 

The  act  of  June  12,  1906  (34  Stat.,  247),  appropriated  for  said 
increase  for  officers  for  the  fiscal  year  1907  but  excepted  Porto  Rico 
and  Hawaii.  The  act  of  March  2,*  1907  (34  Stat.,  1164),  appropriat- 
ing for  the  fiscal  year  1908,  contained  a  similar  appropriation  and 
exception. 

The  act  of  May  11,  1908  (35  Stat.,  110),  provided— 

"  That  increase  of  pay  for  service  beyond  the  limits  of  the  States 
comprising  the  Union,  and  the  Territories  of  the  United  States  con- 
tiguous thereto,  shall  be  as  now  provided  by  law  " — 
and  proceeded  to  appropriate  (p.  114)  : 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL,       391 

"  For  additional  ten  per  centum  increase  on  pay  of  officers  on 
foreign  service." 

An  officer  of  the  Marine  Corps  sailed  from  New  York  June  27, 
1908,  under  orders,  for  duty  in  Porto  Rico  with  station  at  San  Juan, 
and.  served  there  until  November  3,  1909,  when  he  was  detached  and 
ordered  back  to  the  United  States,  arriving  there  four  days  later. 
The  pay  of  the  officers  of  the  Marine  Corps  is  fixed  by  section  1012, 
Revised  Statutes,  at  the  same  as  officers  of  like  grade  in  the  Infantry 
of  the  Army.  This  officer  sued  in  the  Court  of  Claims  for  $209.78, 
being  10  per  cent  of  his  regular  pay,  for  service  in  Porto  Rico  during 
the  period  in  question. 

Ilehl.,  that  the  provision  in  the  act  of  June  12,  1906,  appropriating 
for  the  Army  for  the  fiscal  year  1907,  and  in  the  act  making  similar 
appropriations  for  the  fiscal  year  following,  excepting  Porto  Rico 
and  Hawaii  from  the  appropriation  for  10  per  ceiit  increase  of  pay 
for  officers  serving  therein,  was  temporary  legislation,  was  not  in- 
tended to  aifect  permanently  the  act  of  June  30,  1902,  and  did  nothing 
more  than  to  suspend  temporarily  said  act  as  to  Porto  Rico  and 
Hawaii;  and  that  the  plaintiff  was  entitled  to  recover  the  increase 
claimed. 

{TJ.  JS.  V.  VuUe,  U.  S.  Supt.  Ct.,  May  4, 1914,  233  U.  S.,  509.) 


BULLETIN  33. 

Bulletin  1  WAR  DEPARTMENT, 

No.  33.  J  Washington,  July  '28,  1914. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  June,  1914,  and  of  certain  decisions  of 
the  Comptroller  of  the  Treasury,  is  published  for  the  information 
of  the  service  in  general. 
[2094269  H— A.  G.  O.] 

By  order  of  the  Secretary  of  War  : 

W.  W.  WOTHERSPOON, 

Major  General,  Chief  of  Staff, 
Official  : 

GEO.  ANDREWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ABSENCE:  Of  officers  and  enlisted  men  of  the  Army  due  to  misconduct; 
stoppage  of  pay;  United  States  Military  Academy  detachments. 

The  Army  appropriation  act  of  April  27,  1914  (Pub.  No.  91,  63d 
Cong.,  pi  4),  provided: 

"  That  hereafter  no  officer  or  enlisted  man  in  active  service  who 
shall  be  absent  from  duty  on  account  of  disease  resulting  from  his 
own  intemperate  use  of  drugs  or  alcoholic  liquors  or  other  niiscon- 
duct  shall  receive  pay  for  the  period  of  such  absence,  the  time  so 
absent  and  the  cause  thereof  to  be  ascertained  under  such  procedure 
and  regulations  as  may  be  prescribed  by  the  Secretary  of  W^^-" 

Held,  that  said  legislation  was  clearly  applicable  to  all  officers  and 
enlisted  men  of  the  Army  in  active  service,  and  therefore  was  appli- 
cable to  members  of  the  United  States  Military  Academy  detachment 
at  West  Point,  New  York. 

(72-210,  J.  A.  G.,  June  25,  1914.) 


APPROPRIATIONS:  Specific  and  general;  Engineer  School  at  "Washington 
Barracks,  D.  C. 

The  quartermaster  at  Washington  Barracks,  D.  C,  had  expended 
money  from  appropriations  of  the  Quartermaster  Corps  for  repairs 
on  account  of  the  Engineer  School  buildings  and  for  fuel  and  light 
on  account  of  such  buildings  and  plant.  The  greater  portion  of  these 
expenditures  was  for  heating  the  school  building,  for  operating  the 
school  power  house,  and  for  the  engineer  steamer  Pontonier,  which 
had  been  principally  used  in  transporting  troops  and  supplies.  The 
392 


DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.        393 

approiH-iation  for  the  Engineer  School  for  the  fiscal  year  concerned 
in  the  act  of  Mar.  2,  191H\;37  Stat.,  719),  provided  for  the— ^ 

"  E(iui])ment  and  maintenance  of  the  Engineer  School  at  Washing- 
ton Barracks,  District  of  Columbia,  *  *  *  incidental  expenses  of 
the  school,  including  fuel,  lights,  chemicals,  stationery,  hardware, 
machinery,  and  boats,  *  *  *  for  repairs  of  and  materials  to  repair 
public  buildings  and  machinery." 

Ueld^  that  said  approin-iation  was  more  specific  for  the  purposes 
indicated  than  the  general  appropriations  of  the  Quartermaster 
Cor])s  for  similar  purposes,  and  must  be  used  to  the  exclusion  of  tlie 
latter. 

(5-262,  J.  A.  G.,  June  10,  1914.) 


DESERTERS:   Rewards  for,   when  delivered  to   the  military   authorities, 
but  not  accepted. 

Two  deserters  were  arrested  by  the  sheriff  of  Pike  County,  Ark., 
and  turned  over  to  the  military  authorities  at  Fort  Logan  H.  Eoots 
in  said  state.  The  quartermaster  sergeant  in  charge  of  the  post  at 
the  time  refused  to  receive  the  prisoners,  as  he  had  no  means  of 
guarding  or  feeding  them,  and  advised  the  sheriff  to  report  to  the 
recruiting  officer  at  Little  Rock,  Ark.,  and  to  telegraph  to  the  com- 
manding general,  Eastern  Department,  for  instructions.  He  tele- 
graphed as  advised,  but  before  receiving  a  reply  released  the  pris- 
oners and  returned  to  his  home.  Circulars  had  been  issued  offering 
the  usual  reward  of  $50  for  the  arrest  and  delivery  of  either  of  the 
deserters  in  question  at  a  military  post. 

Ileld^  that  the  sheriff  in  arresting  and  delivering  the  prisoners  to 
the  authorities  at  the  military  post,  had  complied  with  the  terms 
of  the  offer  and  was  entitled  to  the' reward,  notwithstanding  that  the 
prisoners  were  not  accepted  by  such  authorities  and  were  afterwards 

(26-200,  J.  A.  G.,  June  22,  1914.) 


DETACHED  SERVICE:  Status  of  officer,  when  statute  relating  to,  is  in- 
operative. 

The  act  of  August  24,  1912  (87  Stat.,  571),  provided : 

"  That  hereafter  in  time  of  peace  whenever  any  officer  holding  a 
permanent  commission  in  the  line  of  the  Army  with  rank  below  that 
of  major  shall  not  have  been  actually  present  for  duty  for  at  least  two 
of  the  last  preceding  six  years  with  a  troop,  battery,  or  company  of 
that  branch  of  the  Army  in  which  he  shall  hold  said  commission,  such 
officer  shall  not  be  detached  nor  permitted  to  remain  detached  from 
such  troop,  battery,  or  company  for  duty  of  any  kind." 

Ileld^  that  this  statute  "was  applicable  only  in  time  of  peace,  but 
that  when  once  operative  it  applied  to  the  last  preceding  six  years 
and  required  that  an  officer  to  be  eligible  for  detached  service  should 
have  been  present  for  duty  with  his  organization  as  prescribed  for 
at  least  two  of  such  six-year  period,  regardless  of  whether  any  part 
of  tliat  period  was  in  time  other  than  peace  when  the  law^  itself  might 
be  suspended. 

(6-124,  J.  A.  G.,  June  9,  1914.) 


394        DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL. 

DETACHED  SERVICE:  Duty  as  adjutant  of  a  brigade  performed  by  a 
captain  or  by  a  field  oflicer  not  detailed  in  The  Adjutant  General's 
Department. 

The  army  appropriation  act  of  April  27,  1914  (Pub.  No.  91,  63d 
Cong.,  p.  7),  provided: 

"  That  after  September  first,  nineteen  hundred  and  fourteen,  in 
time  of  peace,  whenever  any  officer  holding  a  permanent  commission 
in  the  line  of  the  Army,  with  rank  of  colonel,  lieutenant  colonel,  or 
major,  shall  not  have  been  actually  present  for  duty  for  at  least  two 
years  of  the  last  preceding  six  years  with  a  command  composed  of 
not  less  than  two  troops,  batteries,  or  companies  of  that  branch  of 
the  Army  in  which  he  shall  hold  said  commission,  such  officer  shall 
not  be  detached  nor  permitted  to  remain  detached  from  such  com- 
mand for  duty  of  any  Irind  except  as  hereinafter  specifically  pro- 
vided :  *  *  *  Provided  further^  That  whenever  the  service  record 
of  any  field  officer  is  to  be  ascertained  for  the  purposes  of  this  Act, 
all  duty  actually  performed  by  him  during  the  last  preceding  six 
years,  in  a  grade  below  that  of  major,  in  connection  with  any  statu- 
tory organization  of  that  branch  of  the  Army  in  which  he  shall 
hold  a  permanent  commission,  or  as  a  staff  officer  of  any  coast- 
defense  or  coast-artillery  district,  shall  be  credited  to  him  as  actual 
presence  for  duty  with  a  command  composed  as  hereinbefore  pre- 
scribed    *     *     *." 

Ileld^  in  response  to  specific  inquiries  submitted  by  the  Chief  of 
Staff,  that  when  a  field  officer  of  the  line  "  not  detailed  in  The  Adju- 
tant General's  Department"  (so  specified  in  the  inquiry)  performs 
the  regular  and  normal  duties  of  brigade  adjutant,  he  is  actually 
present  for  duty  with  that  brigade  and  is  therefore  actually  present 
for  duty  with  a  command  composed  of  not  less  than  two  troops, 
batteries,  or  companies  of  that  branch  of  the  Army  in  which  the 
officer  holds  his  commission,  provided,  of  course,  the  brigade  be  a 
brigade  of  his  branch  of  the  service.  Held  further^  that  since  a 
brigade  is  a  "  statutory  organization  "  and  duty  as  a  brigade  adju- 
tant is  duty  "  in  connection  with  "  a  statutory  organization,  it  follows 
that  duty  actually  performed  by  a  captain  as  adjutant  of  a  brigade 
of  his  branch  of  the  service  within  the  period  fixed  by  the  legislation 
must,  in  determining  his  eligibility  for  detached  service  as  a  field 
officer,  be  credited  to  him  as  actual  presence  for  duty  with  a  command 
composed  as  prescribed  by  law. 

(6-124,  J.  A.  G.,  June  18.  1914.) 


DETACHED  SERVICE:  Exercising  command  when  not  present  with  com- 
pany; two-company  commands. 

A  major  was  in  command  of  a  two-company  post,  when  one  of  the 
companies  left  the  post  for  several  days  for  the  purpose  of  engaging 
in  target  practice,  the  officer  remaining  at  the  post.  Opinion  was 
desired  as  to  whether  it  still  constituted  a  two-company  command, 
and,  also,  as  to  whether  it  would  cease  to  be  such  if  one  company 
should  leave  for  duty  in  another  department  for  an  indefinite  period. 

Ileld^  that  the  company  engaged  in  target  practice  was  still  under 
the  officer's  command,  did  not  become  integrated  with  another  com- 
mand, and  the  officer's  command  did  not  cease  to  be  a  two-company 


DIGEST   OF    OPINIONS   OF    THE    JUDGE    ADVOCATE    GENERAL,        395 

command  by  reason  of  such  absence.  Held  fwrther^  that  the  com- 
pany which  might  leave  for  duty  in  another  department  for  an  in- 
definite period  could  not  be  regarded  as  still  constituting  a  part  of 
the  command  of  the  officer,  and  when  the  detached-service  legisla- 
tion was  applicable  the  period  when  this  officer  commanded  only  one 
company  would  have  to  be  regarded  as  duty  other  than  duty  with 
"  a  command  composed  of  not  less  than  two  companies." 
(6-124,  J.  A.  G.,  June  18,  1914.) 


EIGHT-HOUR  LAWS:   Contract  for  dredging';   work   on  retaining'  bulk- 
heads. 

A  contract  provided  for  excavating  in  Flushing  Bay,  N.  Y.,  and 
for  depositing  the  material  excavated  behind  bulkheads  constructed 
.in  shallow  water  or  at  the  water's  edge,  all  embankments  or  bulk- 
heads needed  for  confining  or  grading  the  material  with  necessary 
waste  weirs  to  be  provided,  by  the  contractor  without  assistance  by 
the  United  States.  The  men  employed  in  constructing  the  sod  re- 
taining walls  of  the  bulkheads  were  not  directly  operating  the  dredge 
o:^ regular  excavating  machinery  or  tools.  The  work  was  done  prior 
to  the  commencement  of  dredging  operations,  no  supervision  was  ex- 
ercised over  said  work,  and  no  inspector  was  deemed  necessary  until 
the  dredge  was  ready  to  begin  excavation. 

Held,,  that  such  labor  was  not  performed  upon  a  public  work  of 
the  United  States  and  was  not  therefore  covered  by  the  act  of  Aug- 
ust 1,  1892  (27  Stat.,  340)  ;  but  that,  as  the  contractor  was  required 
to  furnish  his  own  disposal  area,  the  work  of  constructing  the  bulk- 
beads  to  retain  the  dredged  material  as  required  by  the  contract  was, 
under  the  stipulations  of  the  contract,  work  involved  in  the  contract, 
and  whether  the  same  was  done  by  the  contractor  or  by  a  subcon- 
tractor, it  fell  within  the  provisions  of  the  act  of  June  19,  1912  (37 
Stat.,  137),  regarding  the  execution  of  public  contracts  involving  the 
employment  of  laborers  and  mechanics. 

(76-720,  J.  A.  G.,  June  8,  1914.) 


ENLISTED   MEN:    Of   the   Army   Reserve;    employment    of,    in   the    civil 
service. 

_  The  act  of  August  24,  1912  (37  Stat.,  590),  authorized  the  estab- 
lishment of  an  Army  Reserve  consisting  of  enlisted  men  with  a 
military  status  closely  assimilated,  in  respect  to  nonliability  for  ac- 
tive service  in  time  of  peace,  to  that  of  retired  noncommissioned  offi- 
cers and  enlisted  men  created  by  the  act  of  February  14,  1885  (23 
Stat.,  305). 

Held^  that  the  status  of  the  Army  Reserve,  being  analogous  to  that 
of  retired  noncommissioned  officers  and  enlisted  men,  which  latter 
might  be  employed  in  the  civil  service  of  the  Government,  enlisted 
men  of  the  Army  Reserve  could  likewise  be  so  employed,  both  in  the 
classified  and  unclassified  civil  service,  under  such  regulations,  exami- 
nations, and  tests  as  might  be  prescribed  by  the  Civil-Service  Com- 
mission. 

(16-110,  J.  A.  G.,  June  20,  1914.) 


396        DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE    GENEEAL. 

ENLISTED  MEN:  Civil  employment  while  on  furlough. 

An  enlisted  man  requested  a  three  months'  furlough  in  order  that 
he  might  accept  a  civil  service  position  in  the  Post  Office  Department 
with  a  view  of  trying  said  position  before  purchasing  his  discharge. 

Held^  that  an  enlisted  man  on  furlough  might  accept  civil  employ- 
ment, and  that  there  was  no  legal  objection  to  the  granting  of  the 
furlough  as  requested  to  enable  the  soldier  to  accept  the  position  in 
the  Post  Office  Department  during  such  furlough.  Dig.  Op.  J.  A.  G. 
1912,  p.  13  d.  (2)  ;  id.  p.  84  a  (1). 

(2-135,  J.  A.  G.,  June  30,  1914.) 


EURLOUGHS :  Returning  from;  charging  cost  of  transportation  to  soldier. 

A  soldier  was  granted  a  90-day  furlough  for  the  purpose  of  ena- 
bling him  to  visit  his  home  in  St,  Paul,  Minn.,  and  after  the  expira- 
tion of  48  days  thereof  he  was  ordered  to  rejoin  his  company  because 
of  orders  directing  said  company  to  proceed  to  Vera  Cruz,  Mexico. 
To  enable  him  to  rejoin  his  company,  he  Avas  furnished  transporta- 
tion by  the  depot  quartermaster  to  Galveston,  Tex.,  at  a  cost  of 
$45.85. 

Held.,  that  a  soldier  on  furlough  must,  at  the  expiration  thereof, 
return  to  his  post  or  station  at  his  own  expense,  and  the  obligation 
is  the  same  whether  the  length  of  furlough  is  curtailed  or  not,  and 
that  the  soldier  should  be  charged  with  the  cost  of  the  return  trans- 
])ortation  provided  for  him,  not  to  exceed  the  actual  cost  to  the 
Government,  considering  the  amount  of  land-grant  deduction,  if 
any,  to  which  the  United  States  was  entitled. 

(94-240,  J.  A.  G.,  June  4,  1914.) 


MARTIAL  LAW:  Responsibility  for  destruction  of  property  during. 

A  private  corporation  in  Colorado  made  claim  for  damages  to  its 
property  caused,  on  May  27,  1914,  by  a  fire  alleged  to  have  been  of 
incendiary  origin.  It  was  claimed  that  the  Federal  authorities  were 
in  control  of  the  situation  at  the  time  and  had  "  assumed  protec- 
tion of  all  mining  property."  It  did  not  appear  that  there  was  any 
negligence  on  the  part  of  the  troops  in  guarding  the  property'  in 
question. 

Held.,  that  where  the  Government  acts  in  the  preservation  of  order, 
it  assumes  no  obligation  to  insure  property  which  it  attempts  to 
protect,  nor  is  there  any  contractual  agreement  between  the  property 
owners  and  the  Government  that  the  latter  will  be  responsible  for 
want  of  care  on  the  part  of  the  troops  in  protecting  such  property. 
Held,  further^  that  the  Government  is  not  responsible  for  damages 
resulting  from  the  negligence  or  tortious  acts  of  its  officers  or  agents, 
and  that  it  was  not  responsible  for  the  damages  sustained  in  said  case. 

(18-451.  J.  A.  G.,  June  18,  1914.) 


MOUNTS:   Transportation  of,  from  place  of  purchase  to  officer's  station; 
computation  of  cost. 

A  first  lieutenant.  Field  Artillery,  in  August,  1913,  changed  station 
from  Manila,  P.  I.,  to  Schofield  Barracks,  Hawaii.  He  had  never 
had  a  horse  shipped  for  him  to  his  station  at  Government  expense. 


DIGEST   OF    OPINIONS    OF    THE   JUDGE   ADVOCATE    GENERAL.       397 

While  in  the  Philippines  he  purchased  a  mount  but  was  compelled 
to  sell  it  on  changing  station  to  Schofield  Barracks  because  of  an 
order  of  the  Department  of  Agriculture  prohibiting  the  landing  of 
live  stock  or  animals  of  any  kind  from  the  Philippine  Islands  at 
any  port  of  the  Hawaiian  Islands.  He  desired  to  have  a  mount 
purchased  b}'  him  in  the  United  States  shipped  to  him  at  Schofield 
Barracks  at  (jovernment  expense,  pursuant  to  the  provisions  of  the 
act  of  March  23,  1910  (36  Stat.  256),  allowing  the  shipment  at  Gov- 
ernment expense  of  owned  animals  of  an  officer,  not  exceeding  the 
number  authorized  by  law,  from  point  of  purchase  to  his  station 
"  when  he  would  have  been  entitled  to  and  did  not  have  his  author- 
ized number  of  owned  horses  shipped  upon  his  last  change  of  station, 
and  when  the  cost  of  shipment  does  not  exceed  that  from  his  old  to 
his  new  station." 

Held^  that  the  officer  was  entitled  to  have  his  mount  shipped  to 
him  from  the  United  States  to  his  then  present  station  at  a  cost  not 
to  exceed  what  it  would  have  cost  the  Government  to  have  shipped 
a  mount  for  the  officer  from  his  station  in  the  Philippine  Islands  to 
Schofield  Barracks,  and  that  as  in  such  case  the  shipment  would 
have  been  effected  by  Government  transport  the  cost  of  shipment 
should  not  exceed  the  cost  of  shipping  an  animal  on  a  transport,  but 
that  in  computing  said  amount  the  cost  of  subsistence  and  care  of 
the  animal  on  a  transport  would  have  to  be  taken  into  consideration. 

(94-022,  J.  A.  G.,  June  3,  1914.) 


NAVIGABLE   WATERS:   Obstructions  to  streams  navigable   in   different 
States;  disconnected  navigable  portions. 

Section  9  of  the  act  of  March  3,  1899  (30  Stat.,  1151),  provided  as 
follows : 

"  That  it  shall  not  be  lawful  to  construct  or  commence  the  con- 
struction of  any  bridge,  dam,  dike,  or  causeway  over  or  in  any  port, 
roadstead,  haven,  harbor,  canal,  navigable  river,  or  other  navigable 
water  of  the  United  States  until  the  consent  of  Congress  to  the  build- 
ing of  such  structures  shall  have  been  obtained  and  until  the  plans 
for  the  same  shall  have  been  submitted  to  and  approved  by  the  Chief 
of  Engineers  and  by  the  Secretary  of  War:  Provided.  That  such 
structures  may  be  built  under  authority  of  the  legislature  of  a  State 
across  rivers  and  other  waterways  the  navigable  portions  of  which  lie 
Avholly  within  the  limits  of  a  single  State,  provided  the  location  and 
plans  thereof  are  submitted  to  and  approved  by  the  Chief  of  Engi- 
neers and  by  the  Secretary  of  War  before  consti-uction  is  com- 
menced." 

The  Susquehanna  River  contained  a  navigable  portion  from  its 
mouth  to  some  distance  above  lying  wholly  within  the  State  of 
Maryland,  and  also  several  disconnected  navigable  portions  lying 
within  the  State  of  Pennsylvania,  but  it  may  be  that  there  was  no 
navigable  portion  extending  from  one  state  to  the  other.  Ap]ilica- 
tion  was  made  to  the  Chief  of  Engineers  and  the  Secretary  of  War 
for  the  approval  of  plans  for  the  construction  of  a  dam  across  that 
portion  of  the  river  lying  within  the  State  of  Maryland,  no  authority 
for  such  construction  having  been  granted  by  Congress. 


398        DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL. 

Eeld^  that  the  act  of  March  3,  1899,  was  not  limited  in  its  scope  to 
interstate  navigation,  but  operated  on  agencies  and  instrumentalities 
of  interstate  commerce,  and  its  sole  object  was  the  preservation  and 
j)rotection  of  the  navigability  of  these  instrumentalities  {United 
States  v.  Rio  Grande,  etc.,  Co.,  174  U.  S.,  690 ;  St.  Anthony's  W.  P. 
Co.  V.  Water  Comm'rs,  168  U.  S.,  349;  The  Montello,^0  Wall.,  430)  ; 
that  the  distinction  made  in  the  statute  was  between  rivers  whose  nav- 
igable portions  lie  entirely  within  a  single  state  and  those  whose  navi- 
gable portions  lie  within  more  than  one  state,  which  distinction  did 
not  rest  upon  the  fact  that  in  the  one  case  there  could  not  be,  and  in 
the  other  there  might  be  interstate  navigation  thereon;  and  that  the 
Susquehanna  River  having  navigable  portions  in  more  than  one  state 
did  not  come  within  the  proviso  relative  to  rivers  the  navigable  por- 
tions of  which  lie  wholly  within  the  limits  of  a  single  state,  although 
there  might  be  no  interstate  navigation.  Held  further,  that  the  Sec- 
retary of  War  and  Chief  of  Engineers  were  without  authority  to  ap- 
prove the  plans  for  the  construction  of  a  dam  across  the  Susquehanna 
Eiver  in  Maryland  until  authoritv  had  been  obtained  from  Congress. 

(62-020,  J.  A.  G.,  June  8,  1914!) 


NAVIGABLE  WATERS:   Rights  of  fishery  and  navigation;   fishing  nets 
as  obstructions  to  navigation. 

Section  10  of  the  act  of  March  3,  1899  (30  Stat.,  1151),  provided  as 
follows : 

"  That  the  creation  of  any  obstruction  not  affirmatively  authorized 
by  Congress  to  the  navigable  capacity  of  any  of  the  waters  of  the 
United  States  is  hereby  prohibited ;  *  *  *  and  it  shall  not  be 
lawful  to  excavate  or  fill,  or  in  any  manner  to  alter  or  modify  the 
course,  location,  condition,  or  capacity  of  any  port,  roadstead,  haven, 
harl^or,  canal,  lake,  harbor  of  refuge,  or  inclosure  within  the  limits 
of  any  breakwater,  or  of  the  channel  of  any  navigable  water  of  thie 
LTnited  States,  unless  the  work  has  been  recommended  by  the  Chief 
of  Engineers  and  authorized  by  the  Secretary  of  War  prior  to  begin- 
ning the  same.'' 

A  notice  had  been  issued  by  authority  of  the  Secretary  of  War  to 
those  engaged  in  fishing  in  the  waters  near  the  mouth  of  the  Columbia 
Eiver,  Oreg.,  calling  attention  to  the  foregoing  provision  and  to  the 
provisions  of  section  12  of  said  act  prescribing  punishment  for  viola- 
tions thereof,  and  advising  them  that  the  operation  of  gill  nets  for 
taking  fish  within  certain  limits  was  considered  as  an  unreasonable 
obstruction  to  navigation  and  prohibited  by  said  law.  It  was  shown 
that  gill  nets  were  sometimes  half  a  mile  in  length  and  30  feet  or  more 
in  width,  and  constituted  a  menace  to  navigation  from  the  liability  of 
becoming  entangled  in  the  propellers  of  passing  vessels  or  other- 
wise impeding  their  progress. 

Held,  that  the  right  of  navigation  was  superior  to  the  right  of 
fishery ;  that  Congress  by  said  act  had  assumed  full  jurisdiction  over 
the  navigable  waters  of  the  United  States  and  had  paramount  author- 
ity over  the  same;  that  the  act  prevented  obstructions  not  only  to  the 
navigable  portions  of  the  waters,  but  also  to  the  navigable  capacity  as 
well ;  that  the  placing  of  such  nets  in  the  channel  of  the  river  consti- 
tuted an  obstruction  to  navigation  within  the  prohibition  of  the 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       399 

statute,  which  obstruction  might  be  removed  or  abated;  and  that 
under  the  clauses  of  said  section  10  succeeding  the  general  prohibition 
therein,  the  Chief  of  Engineers  and  the  Secretary  of  War  might 
authorize  the  operation  of  seines  which  constitute  obstnictions  to  the 
navigable  capacity  of  said  river,  but  which,  if  not  authorized,  would 
be  prohibited  by  the  opening  declaration  of  said  section,  said  charac- 
ter of  obstruction  coming  within  the  concluding  language  of  said 
section. 

(62-100,  J.  A.  G.,  June  11,  1914.) 


PURCHASES:  Of  supplies;  advertising  for  purchase  of  an  aeroplane;  lack 
of  competition. 

The  Chief  Signal  Officer  of  the  Army  desired  authority  "  to  hold 
a  competition  for  the  development  of  a  suitable  militar}'^  aeroplane 
for  service  use,  purchasing  the  machine  making  the  highest  points 
in  the  competition "  for  a  certain  price,  the  machine  making  the 
next  highest  number  of  points  for  a  less  price,  and  the  machine 
making  the  next  highest  number  of  points  for  still  less  price.  The 
appropriation  for  the  Signal  Service  for  the  fiscal  year  1915  author- 
ized the  expenditure  of  not  more  than  $250,000  for  the  purchase, 
maintenance,  operation,  and  repair  of  air  ships  and  other  aerial 
machines,  and  placed  no  restriction  upon  the  Secretary  of  War  as  to 
the  method  of  procuring  the  same. 

II eld ^  that  the  object  not  being  to  procure  aeroplanes  of  standard 
type,  but  to  develop  a  suitable  one  for  the  military  service,  the  case 
was  one  where  it  was  impracticable  to  secure  competition,  and  where 
the  object  could  not  be  attained  by  advertising;  that  the  statutes 
regarding  advertising  were  inapplicable ;  and  that  no  legal  objection 
existed  to  the  course  proposed. 

(6-231.  J.  A.  G.,  June  11,  1914.) 


QUARTERMASTER  CORPS:  Recommissioning'  officers  of  the  constituent 
departments  therein. 

Section  3  of  the  act  of  August  24,  1912  (37  Stat.,  591),  provided  as 
follows : 

"  The  Quartermaster's,  Subsistence,  and  Pay  Departments  of  the 
Army  are  hereby  consolidated  into  and  shall  hereafter  be  knowai  as 
the  Quartermaster  Corps  of  the  Army.  The  officers  of  said  depart- 
ments shall  hereafter  be  known  as  officers  of  said  corps  and  by  the 
titles  of  the  rank  held  by  them  therein  *  *  *.  The  officers  now 
holding  commissions  as  officers  of  the  said  departments  shall  hereafter 
have  the  same  tenure  of  commission  in  the  Quartermaster  Corps,  and 
as  officers  of  said  corps  shall  have  rank  of  the  same  grades  and  dates 
as  that  now  held  by  them,  and,  for  the  purpose  of  filling  vacancies 
among  them,  shall  constitute  one  list,  on  which  they  shall  be  arranged 
according  to  rank." 

An  officer  of  the  consolidated  corps  held  a  commission  as  assistant 
commissary  general  with  rank  of  colonel. 

lielcl^  that  Congress  might  change  the  rank  and  pay  of  an  officer 
without  making  a  new  appointment  necessary  {Wood  v.  United 
States^  lOT  U.  S.;,  414) ;  that  the  statute  effected  the  consolidation 


400       DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE    GENEEAL. 

without  the  necessity  for  the  reappointment  or  recommissioning  the 
officers  of  the  respective  departments  as  officers  of  the  consolidated 
corps;  and  that  there  was  no  necessity  for  a  new  commission. 
(&-224,  J.  A.  G.,  June  13,  1914.) 


SALES  OF  PROPERTY:  By  the  Government  to  a  civilian;  sale  of  fuel. 

The  postmistress  at  Fort  Meyer,  Va.,  applied  to  the  quartermaster 
at  said  post  for  the  privilege  of  purchasing  fuel  for  her  personal  use. 
Paragraph  1055,  Army  Regulations,  1913,  provided  for  the  sale  of 
quartermaster  stores  to  civilians  employed  with  the  Army  "  at  remote 
posts  or  stations  where  it  is  impossible  to  procure  at  reasonable  rates" 
the  articles  supplied. 

Held,  that  as  the  fuel  was  intended  for  the  personal  use  of  the 
applicant,  the  sale  could  not  be  regarded  as  a  sale  from  one  depart- 
ment of  the  Government  to  another,  and  as  the  applicant  was  not 
a  civilian  employed  with  the  Army  at  a  remote  station  or  post,  the 
sale  to  her  of  fuel  by  the  Quartermaster  Corps  would  be  unauthorized. 

(80-132,  J.  A.  G.,  June  3,  1914.) 


TRANSPORTATION:  Redemption  of  the  unused  portion  of  a  ticket  issued 
on  a  Government  transportation  request. 

A  discharged  general  prisoner  applied  to  a  railway  company  for  a 
refund  of  the  unused  portion  of  a  ticket  given  in  exchange  for  a 
transportation  request  issued  to  him  on  his  discharge,  in  accordance 
with  the  act  of  March  2,  1913  (37  Stat.,  715).  Transportation  was 
furnished  from  New  York  to  Chicago,  111.,  but  he  had  used  the 
ticket  only  as  far  as  Buffalo,  N.  Y. 

Held.,  that  the  Government  could  claim  no  right  to  refund  in 
respect  of  the  unused  portion  of  the  ticket  furnished  the  prisoner, 
and  that  the  matter  was  one  for  arrangement  between  the  railroad 
company  and  the  holder  of  the  unused  portion  of  the  ticket.  94-322, 
J.  A.  G..  March  10,  1914. 

(94-330,  J.  A.  G.,  June  1,  1914.) 

Similarly  held  with  respect  to  the  redemption  of  the  unused  por- 
tion of  a  ticket  obtained  on  a  transportation  request  issued  to  a  re- 
jected applicant  for  enlistment  for  his  return  to  the  station  where 
ne  was  accepted  for  enlistment. 

(Id.,  June  17,  1914.) 


TRAVEL    ALLOWANCES:    Of    soldiers    on    discharge;    transportation    to 
point  within  the  continental  limits  of  the  United  States. 

A  soldier  enlisted  in  the  Philippine  Islands  and  was  discharged 
at  Fort  McDowell,  Cal.,  and  decision  was  desired  as  to  whether  he 
could  be  furnished  with  transportation  in  kind  and  subsistence  under 
the  act  of  August  24,  1912  (37  Stat.,  576),  to  Nome.  Alaska.  Said 
act  provided  that — 

"  when  an  enlisted  man  is  discharged  from  the  service,  except  by 
way  of  punishment  for  an  offense^  he  shall  be  entitled  to  transporta- 
tion in  kind  and  subsistence  from  the  place  of  his  discharge  to  the 


DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL.       401 

place  of  his  enlistment,  or  to  such  other  place  within  the  continental 
limits  of  the  United  States  as  he  may  select,  to  which  the  distance 
is  no  greater  than  from  the  place  of  discharge  to  place  of  enlist- 
ment    *     *     *." 

Ileld^  that  the  term  "  United  States  "  is  susceptible  of  a  restricted 
or  an  enlarged  meaning,  depending  on  the  context,  and  may  be  used 
as  limited  to  the  states  comprising  the  Union  or  to  include  the  organ- 
ized states  and  the  territories  or  dependencies  of  the  same;  that  in 
the  statute  under  consideration  said  term  is  c|ualified  by  the  term 
"  continental  limits,"  which  indicates  that  it  is  used  in  the  larger 
sense;  and  that  Alaska  may  be  regarded  as  within  the  continental 
limits  of  the  United  States  within  the  meaning  of  this  statute. 

(94-332,  J.  A.  G.,  June  3,  1914.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

APPROPRIATIONS:  Charging  to  a  contractor  cost  of  material  furnished 
by  the  United  States. 

A  contract  provided  for  the  construction  for  the  United  States  of 
two  storehouses  at  Fort  Mason,  Cal.,  the  contractor  to  furnish  all 
crushed  rock  required  on  the  work.  The  Government,  however,  re- 
served the  right  of  furnishing  crushed  rock  used  on  the  work  at  the 
rate  of  $1.25  per  cubic  yard  of  rock  so  furnished,  the  amount  to  be 
deducted  from  the  contract  price. 

Tield^  that  the  furnishing  by  the  Government  of  crushed  rock  in 
pursuance  of  tlie  contract  was  tantamount  to  a  payment  on  the  con- 
tract of  $1.25  for  each  cubic  yard  of  rock  furnished,  and  that  the  cost 
of  labor  and  materials  necessary  to  furnish  the  rock  was  payable  from 
the  appropriation  for  the  project  or  work  itself,  notwithstanding 
that  a  considerable  portion  of  the  rock  was  furnished  in  a  fiscal  year 
other  than  that  of  the  appropriation  for  the  work  under  the  contract. 

(Comp.  Geo.  E.  DoAvney,  June  4,  1914.) 


BARRACKS  AND  QUARTERS:  Limitation  on  cost  of  construction  of;  use 
of  appropriations. 

Section  1136,  Revised  Statutes,  provided  that — 

"  Permanent  barracks  or  quarters  and  buildings  and  structures  of  a 
permanent  nature  shall  not  be  constructed  unless  detailed  estimates 
shall  have  been  previously  submitted  to  Congress  and  approved  by  a 
special  appropriation  for  the  same  except  when  constructed  by  the 
troops;  and  no  such  structures,  the  cost  of  which  shall  exceed  twenty 
thousand  dollars,  shall  be  erected  unless  by  special  authority  of 
Congress." 

Appropriation  was  made  by  the  act  of  April  27,  1914  (Pub.  No.  91, 
p.  18),  of  a  lump  sum  for  the  construction  and  repair  of  hospitals  at 
military  posts  already  established,  and  of  general  hospitals,  and  for 
additions  needed  to  meet  the  requirements  of  increased  garrisons. 

93668°— 17 26   . 


402   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

It  was  proposed  to  expend  from  this  appropriation  $20,000  for  the 
completion  of  each  of  two  hospitals,  and  the  same  amount  for  the 
erection  of  an  addition  to  another.  The  sum  of  $45,000  had  been 
appropriated  for  the  erection  of  one  of  the  hospitals  that  was  to  be 
completed,  and  the  amount  had  practically  all  been  expended. 

Ileld^  in  the  case  of  the  hospital  for  which  the  appropriation  had 
been  made,  that  no  greater  sum  than  the  amount  appropriated  could 
be  expended  without  congressional  authority,  and  that  as  to  the  other 
two,  the  appropriation  for  the  construction  and  repair  of  hospitals 
was  not  available  for  additions  which  would  carry  the  cost  of 
the  buildings  above  the  $20,000  limit  without  further  legislative 
direction. 

(Comp.  Geo.  E.  Downey,  June  15,  1914.) 


CONTRACTS:  Charging  cost  of  work  voluntarily  furnished  by  the  Govem- 
ment. 

A  contract  was  entered  into  for  the  construction  of  a  levee,  with 
provision  in  the  specifications  that  if  in  the  opinion  of  the  con- 
tracting officer  operations  under  the  contract  were  not  being  carried 
forward  at  a  rate  which  would  insure  the  completion  of  the  work 
within  the  stipulated  time,  that  officer  might  employ  additional 
plant  or  labor  and  purchase  such  material  as  might  be  necessary 
to  insure  the  proper  completion  of  the  work  within  the  specified 
time,  any  excess  of  cost  to  be  charged  to  the  contractors.  The  work 
was  not  completed  within  the  time  limited,  but  the  contractors  were 
permited  to  proceed  with  the  work  under  an  article  in  the  agreement. 
Later  it  was  feared  that  threatened  floods  might  destroy  the  work 
already  completed,  and  without  request  to  the  contractors  to  increase 
their  force,  and  without  any  action  annulling  the  contract,  the  Gov- 
ernment hired  additional  teams  to  supplement  the  work. 

Held^  that  the  Government  having  voluntarily,  without  contract 
authority,  assumed  to  do  certain  work,  it  was  entitled  to  charge  the 
contractors  no  more  than  the  reasonable  cost  to  it  of  doing  the  same, 
and  that  the  contractors  were  entitled  to  settlement  at  full  contract 
rates  for  all  embankments  placed,  and  to  be  charged  only  with  the 
actual  cost  to  the  Government  of  the  work  done  by  the  latter,  without 
considering  whether  or  not  the  contractors  made  a  profit  on  account 
of  such  work. 

(Comp.  Geo.  E.  Downey,  June  24,  1914.) 


COURTS-MARTIAL:  Jurisdiction  of;  sentence  of  forfeiture  of  pay;  satisfy- 
ing indebtedness  to  the  Government  and  to  a  post  exchange. 

A  retired  sergeant  major.  United  States  Army,  had  been  tried  by 
court-martial  for  the  larceny  of  certain  funds  belonging  to  the  post 
exchange  at  the  post  where  he  was  serving,  while  he  was  exchange 
steward.  He  was  sentenced  to  forfeit  $50  per  month  of  his  pay  for 
the  period  of  one  year,  and  thereafter  to  suffer  a  stoppage  of  a  like 
amount  per  month  to  reimburse  the  post  exchange  until  the  sum  of 
$875  should  be  paid  to  said  post  exchange,  that  sum  being  the  amount 
of  his  indebtedness  on  account  of  said  larcenies. 


DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL,       403 

Section  4818,  Revised  Statutes^  provided: 

"  For  the  support  of  the  Soldiers'  Home  the  following  funds  are 
set  apart,  and  are  hereby  appropriated:  All  stoppages  or  fines  ad- 
judged against  soldiers  by  sentence  of  courts-martial,  over  and  above 
any  amount  that  may  be  due  for  the  reimbui-sement  of  (lovernment, 
or  of  individuals;     *     *     *." 

Held^  that  the  stoppage  of  pay  to  reimbui-se  the  Government  or  a 
Government  agency  on  account  of  losses  for  which  officers  and  en- 
listed men  are  responsible,  is  purely  an  administrative  matter  with 
which  courts-martial  have  nothing  to  do;  that  such  part  of  the  sen- 
tence as  directed  a  stoppage  of  pay  to  reimburse  the  post  exchange 
was  unauthorized,  and  should  be  disregarded ;  and  that  the  sentence 
should  stand  as  though  it  read  only  for  the  forfeiture  of  $50  per 
month  for  a  period  of  one  year.  Held  further^  that  a  post  exchange 
-is  an  agency  or  instrumentality  of  the  Government,  and  comes  within 
the  class  of  individuals  mentioned  in  section  4818,  Revised  Statutes ; 
that  there  was  no  pay  against  which  the  forfeiture  could  run  until 
the  indebtedness  to  the  post  exchange  had  been  satisfied;  and  that 
when  so  satisfied  the  forfeiture  or  fine  would  begin  to  run  against 
the  soldier's  pay  and  continue  for  the  time  specified,  the  amount  as 
collected  being  appropriated  to  the  Soldiers'  Home. 

(Comp.  Geo.  E.  Downey,  June  11,  1914.) 


LEASING:  Of  quarters;  form  of  contract  for,  by  offer  and  acceptance. 

It  was  proposed  to  make  agreements  in  the  form  of  a  proposal  and 
acceptance  for  the  payment  of  the  rent  of  quarters  hired  for  occu- 
pancy by  officers  and  enlisted  men,  also  contracts  for  the  transporta- 
tion of  troops,  impedimenta,  etc. 

Section  3744,  Revised  Statutes,  required,  among  other  things,  that 
contracts  executed  under  the  authority  of  the  Secretary  of  War 
should  be  reduced  to  writing  and  signed  by  the  contracting  parties 
with  their  names  at  the  end  thereof. 

Held^  that  it  has  been  uniformly  ruled  by  the  courts  that  an  agree- 
ment in  the  form  of  a  proposal  and  acceptance  was  not  such  a  con- 
tract as  complied  with  the  statute  {St.  Louis  Hay^  etc.^  Co.  v.  United 
States,  161  U.  S.,  159 ;  United  States  v.  R.  P.  Andrews  c&  Co.^  207 
U.  S.,  229) ;  and  that  the  use  of  the  proposed  form  of  agreement 
was  not  authorized.    Dec.  Sept.  11,  1912. 

(Comp.  Geo.  E.  Downey,  June  11,  1914.) 


PAY  OF  ENLISTED  MEN:  Of  the  Army;  continuous  service;  reenlistment 
after  completed  enlistment  and  subsequent  dishonorable  discharge. 

A  soldier  had  served  continuously  as  an  enlisted  man  in  the  Marine 
Corps  and'  in  the  Army,  reenlisting  after  the  termination  of  each 
period  of  enlistment  by  an  honorable  discharge  from  April  18,  1895, 
until  September  5,  1913,  when  he  was  dishonorably  discharged  by 
sentence  of  general  court-martial,  with  forfeiture  of  pay  and  allow- 
ances and  imprisonment  for  three  months.  Before  the  expiration 
of  his  term  of  imprisonment  he  received  permission  to  reenlist  and 


404        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEKAL. 

did  SO  reenlist  within  three  months  after  his  dishonorable  discharge. 
The  act  of  May  11, 1908  (35  Stat,  109),  provided— 

"  That  hereafter  any  soklier  honorably  discharged  at  the  termina- 
tion of  an  enlistment  period  who  reenlists  within  three  months  there- 
after, shall  be  entitled  to  continuous  service  pay  as  herein  provided, 
which  shall  be  in  addition  to  the  initial  pay  provided  for  in  this  act 
*  *  * :  Provided^  That  hereafter  any  soldier  honorably  discharged 
at  the  termination  of  his  first  or  any  succeeding  enlistment  period 
who  reenlists  after  the  expiration  of  three  months  shall  be  regarded 
as  in  his  second  enlistment:     *     *     *." 

Held^  that  enlistments  closed  by  honorable  discharge  become  fixed 
and  determined  when  the  honorable  discharge  is  given,  and  must 
remain  so,  and  that  it  was  not  in  the  power  of  the  court-martial  to 
change  them ;  that  this  soldier  having  been  honorably  discharged  at 
the  termination  of  a  completed  enlistment  period  sometime  prior 
to  his  dishonorable  discharge,  the  case  fell  within  the  provision  of 
the  statute  relative  to  reenlistment  after  three  months  after  an  hon- 
orable discharge  at  the  termination  of  an  enlistment  period;  and 
that  he  should  be  carried  as  in  his  second  enlistment.  The  decision 
in  14  Comp.  Dec.  367  and  16  id.  871  were  modified  in  accordance 
with  the  above  decision. 

(Comp.  Geo.  E.' Downey,  June  3.  1914.) 


PAY  OF  ENLISTED  MEN:  Continuous  service;  application  for  reenlistment 
within  time,  but  enlistment  completed  afterwards. 

The  act  of  May  11,  1904  (35  Stat.,  109),  provided  that— 

"  Hereafter  any  soldier  honorably  discharged  at  the  termination 
of  an  enlistment  period  who  reenlists  Avithin  three  months  thereafter 
shall  be  entitled  to  continuous-service  pay  as  herein  provided." 

A  soldier  had  served  two  continuous  enlistments,  receiving  an  hon- 
orable discharge  from  each,  the  last  being  dated  April  27,  1907.  He 
applied  for  reenlistment  before  the  expiration  of  three  months,  but 
on  account  of  delays,  apparently  for  the  convenience  of  the  Govern- 
ment, and  without  his  fault,  he  was  not  finally  reenlisted  and  sworn 
in  until  aft^r  the  expiration  of  said  period  of  three  months. 

Held^  that  he  was  entitled  to  have  his  reenlistment  to  take  effect 
before  the  expiration  of  said  three-month  period,  and  was  entitled 
to  the  benefit  of  his  prior  service  in  computing  his  pay  for  continuous 
service.    Coe  v.  U.  S.,  44  Ct.  Cls.,  419. 

(Comp.  Geo.  E.  Downey,  June  16,  1914.) 


PAYMENTS :  For  forage,  stabling,  and  other  services  for  mounts  of  military 
attaches  abroad. 

It  had  been  the  practice  of  officers  of  the  Army  on  foreign  service 
in  France  to  pay  for  forage,  stabling,  horseshoeing,  and  veterinary 
services  for  their  private  mounts  used  in  the  service,  afterwards  pro- 
curing public  bills  to  be  made  out  and  signed  by  the  persons  furnish- 
ing the  service. 

Tleld^  that  while  this  practice  was  contrary  to  the  well-established 
rule  that  payment  could  be  made  only  to  the  person  rendering  the 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       405 

service,  and  that  the  claim  of  persons  Avho  vohintarily  pay  the 
Government's  obligations  can  not  be  recognized,  yet  as  these  sup- 
plies and  services  were  furnished  by  Frenchmen  unfamiliar  with 
our  language,  who  did  not  understand  our  system  of  vouchers,  and 
who  held  the  officers  themselves  i)ersonally  responsible  for  the  service, 
officers  incurring  necessary  and  proper  expenses  for  the  purposes 
stated  might  be  reimbursed  upon  vouchers  proi)erly  executed,  accom- 
panied by  subvouchers  showing  that  the  bills  were  actually  paid  by 
them,  together  with  satisfactory  certificates  as  to  the  necessity 
therefor. 

(Comp.  Geo.  E.  Downey,  June  19,  1914.) 


PURCHASES:   Of  envelopes  for  sale  to   officers  and  enlisted  men  of  the 
Army. 

The  Auditor  for  the  War  Department  disallowed  items  aggregating 
$3.64,  in  the  accounts  of  a  quartermaster  (the  same  being  payments 
for  envelopes  purchased  for  military  posts  for  sale  to  officers  and 
enlisted  men),  on  the  ground  that  the  purchases  were  not  in  accord- 
ance with  the  provisions  of  the  act  of  June  26,  1906  (34  Stat,,  476), 
which  provided  that  after  December  31,  1906: 

"  *  *  *  the  Postmaster  General  shall  contract,  for  a  period  not 
exceeding  four  years,  for  all  envelopes,  stamped  or  otherwise,  de- 
signed for  sale  to  the  public,  or  for  use  by  the  Post  Office  Department, 
the  Postal  Service,  and  other  executive  departments,  and  all  Gov- 
ernment bureaus  and  establishments,  and  the  branches  of  the  service 
coming  under  their  jurisdiction,  and  may  contract  for  them  to  be 
plain  or  with  such  printed  matter  as  may  be  prescribed  by  the 
department  making  requisition  therefor;     *     *     *." 

On  appeal,  the  Comptroller  of  the  Treasury  affirmed  the  action  of 
the  auditor,  and 

Held^  that  the  above  quoted  provision  prohibited  the  purchase  of 
envelopes  by  or  for  any  Government  department,  bureau,  or  estab- 
lishment, or  any  branch  of  the  service  coming  under  their  jurisdic- 
tion, in  any  other  manner  than  under  contract  made  by  the  Post- 
master General,  except  in  case  of  exigency  where  the  need  for  the 
envelopes  was  so  urgent  as  not  to  permit  of  the  delay  necessarily  in- 
cident to  obtaining  them  through  the  Postmaster  General.  See  20 
Comp.  Dec,  34,  and  decisions  therein  cited. 

(Comp.  Geo.  E.  Downey,  June  4,  1914.) 


TRAVELING  EXPENSES:  Actual  cost  of  subsistence. 

The  urgent  deficiency  act  of  April  6,  1914  (Pub.  No.  82,  63d  Cong., 
p.  7),  provided  that — 

"On  and  after  July  first,  nineteen  hundred  and  fourteen,  unless 
otherwise  expressly  provided  by  law,  no  officer  or  employee  of  the 
United  States  shall  be  allowed  or  paid  any  sum  in  excess  of  expenses 
actually  incurred  for  subsistence  while  traveling  on  duty  outside 
of  the  District  of  Columbia  and  away  from  his  designated  post  of 
duty,  nor  any  sum  for  such  expenses  actually  incurred  in  excess  of 
$5  per  day ;  nor  shall  any  allowance  or  reimbursement  for  subsistence 


406        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

be  paid  to  any  officer  or  employee  in  any  branch  of  the  public  service 
of  the  United  States  in  the  District  of  Columbia  unless  absent  from 
his  designated  post  of  duty  outside  of  the  District  of  Columbia,  and 
then  only  for  the  period  of  time  actually  engaged  in  the  discharge 
of  official  duties." 

Held.,  that  said  legislation  affected  only  expenses  for  subsistence; 
that  railroad  fare,  Pullman  charges,  street  care  fare  and  cab  hire,  as 
well  as  tips  to  Pullman  porters  and  cabin  and  deck  stewards,  were 
items  of  transportation,  were  not  chargeable  as  a  part  of  the  cost  of 
subsistence,  and  were  not  included  in  the  maximum  of  $5  per  day 
allowed  for  expenses  actually  incurred  for  subsistence ;  and  that  the 
latter  term  included  expenses  of  board  and  lodging  and  tips  at  hotels. 

(Comp.  Geo.  E.  Downey,  Apr.  22  and  24,  1914.) 


BULLETIN  39. 

Bulletin  1  WAR  DEPARTMENT, 

No.  39.    J  Washington,  August  18,  1914. 

The  followins^  digest  of  opinions  of  the  Judge  Advocate  General 

of  the  Army  for  the  month  of  July,  1914,  and  of  certain  decisions 

of  the  courts,  is  published  for  the  information  of  the  service  in 

general. 

[2194536,  A.  G.  O.] 

By  order  of  the  Secretary  of  War  : 

W.  W.  WOTHERSPOON, 

Major  General,  Chief  of  Staff. 
Official: 

GEO.  ANDREWS, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  aENERAL. 

ABSENCE:  On  account  of  disease  resulting'  from  misconduct,  or  while  in 
confinement;  making'  g'ood  time  lost. 

The  act  of  April  27,  1914  (Pub.  No.  21,  p.  3),  provided : 

"That  an  enlistment  shall  not  be  regarded  as  complete  until  the 
soldier  shall  have  made  good  any  time  in  excess  of  one  day  lost  by 
unauthorized  absences,  or  on  account  of  disease  resulting  from  his 
own  intemperate  use  of  drugs  or  alcoholic  liquors  or  other  miscon- 
duct, or  while  in  confinement  awaiting  trial  or  disposition  of  his  case 
if  the  trial  results  in  conviction,  or  while  in  confinement  under 
sentence." 

A  private  soldier  of  the  Quartermaster  Corps  who  had  enlisted 
before  the  passage  of  said  act  was  absent  from  active  duty  on  account 
of  sickness  resulting  from  his  own  misconduct  from  March  9  to  25 
and  from  April  17  to  May  1,  1914,  all  dates  inclusive.  He  was  being 
held  beyond  his  period  of  enlistment  to  make  good  the  time  so  lost. 

Held,  that  said  act  had  application  only  to  enlistments  entered  into 
on  or  subsequent  to  its  date  and  did  not  affect  prior  enlistments, 
except  as  to  unauthorized  absences  in  excess  of  one  da.y,  as  to  which 
the  law  only  repeated  existing  legislation  (Dig.  Op.  J.  A.  G.,  1912, 
p.  16,  B  9)  ;  and  that  the  soldier  should  not  be  held  to  service  to 
make  up  time  lost  through  absences  due  to  the  causes  mentioned 
occurring  either  before  or  after  the  passage  of  the  act.  Held  fur- 
ther, that  the  law  being  permanent  legislation  took  effect  from  its 
date  and  not  from  the  beginning  of  the  fiscal  year  for  which  appro- 
priations were  made  therein. 

(2-234,  J.  A.  G.,  July  15,  1914.) 

407 


408        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

CONTRACTS:   Supplemental;  covering'  matter  not  included  in  the  original 
contract. 

Recommendation  was  made  for  the  execution  of  a  supplemental 
contract  for  the  construction  of  Avalks,  drains,  etc.,  at  an  Army  post. 
The  original  contract  included  a  certain  amount  of  paved  ditch  at  a 
cost  which  the  quartermaster  deemed  too  high  and  also  other  side- 
walks, but  not  the  one  proposed  to  be  constructed  by  the  supple- 
mental contract. 

Held.,  that  supplemental  contracts  should  be  made  only  in  cases 
where  obstacles  or  unforeseen  conditions  arise,  or  when  the  Govern- 
ment desires  to  abandon  the  whole  or  a  part  of  its  undertaking,  and 
should  also  be  made  in  the  interest  of  the  United  States;  that  section 
3709,  Revised  Statutes,  required  that  all  contracts  be  made  after 
advertising;  and  that,  as  the  walk  proposed  to  be  constructed  was 
not  included  in  the  advertisement  for  the  original  contract  but  was 
a  new  piece  of  work,  it  did  not  come  within  the  original  advertise- 
ment and  could  not  be  regarded  as  an  increase  provided  for  in  the 
then  existing  contract.  Held  therefore^  that  the  substitution  of  the 
supplemental  for  the  original  contract  could  not  be  made. 

(76-400,  J.  A.  a,  July  27,  1914.) 


COUBTS-MAIITIAL:  Combining  separate  offenses  to  make  a  greater  offense. 

A  soldier  was  tried  by  general  court-martial  on  two  separate  speci- 
fications, each  charging  larceny.  In  neither  specification  were  the 
articles  charged  to  have  been  stolen  of  sufficient  value  to  constitute 
the  offense  of  grand  larceny  under  the  local  law,  but  the  total  value 
of  all  the  articles  stolen,  as  set  forth  in  the  two  specifications, 
amounted  to  a  sufficient  sum  to  make  an  offense  of  grand  larceny. 
Under  the  military  practice  the  two  offenses  were  tried  together  and 
one  sentence  imposed. 

Held,  that  the  several  larcenies  by  thie  accused  could  not  be  aggre- 
gated for  the  purpose  of  making  a  case  of  grand  larceny,  if  they  were 
separate  and  distinct  transactions:  and  that  the  prisoner  should  not 
be  confined  in  the  Federal  penitentiary,  but  should  be  confined  in  the 
United  States  Military  Prison  at  Fort  Leavenworth,  Kans. 

(30-200,  J.  A.  G.,  July  23,  1911.) 


DETACHED    SERVICE:   Instructors   at   joint   camps   composed   of   regular 
troops  and  organized  militia;  service  with  troops  in  the  field. 

Opinion  was  desired  as  to  whether  officers  of  the  Army  ineligible 
for  general  detached  service  might  be  detailed  for  duty  as  instructors 
at  joint  camps  composed  of  regular  troops  and  organized  militia  for 
periods  not  to  exceed,  in  each  case,  60  days  in  any  calendar  year. 
The  detached  service  legislation,  which  required  a  certain  period  of 
duty  with  a  specified  command  to  establish  eligibility  to  be  detached 
or  to  remain  detached  from  such  command  for  duty  of  any  kind,. 
was  subject  to  exceptions,  one  of  which  was  contained  in  the  act  of 
April  27,  1914  (Pub.  No.  91,  p.  8),  reading  as  follows: 

"That  temporary  duty  of  any  kind  hereafter  performed  with 
United  States  troops  in  the  field  for  a  period  or  periods  the  aggre- 
gate of  which  shall  not  exceed  sixty  days  in  any  one  calendar  year, 


DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       409 

*  *  *  by  any  officer  who,  before  assignment  to  such  duty,  shall 
have  been  regularly  assigned  to,  and  shall  have  entered  upon  duty 
with,  an  organization  or  a  command  the  detachment  of  certain  officers 
from  which  is  prohibited  by  the  act  of  Congress  approved  August 
24,  1912,  or  by  this  act  shall,  for  the  purposes  of  said  acts,  hereafter 
be  counted  as  actually  present  for  duty  with  such  organization  or 
command." 

Ileld^  that  a  contingent  of  the  Kegular  Army  employed  in  the 
usual  joint  camps  composed  of  regular  troops  and  organized  militia 
sliould  be  regarded  as  "  troops  in  the  field  "  within  the  meaning  of  the 
above  provision ;  that  officers  performing  duty  with  troops  were  not 
limited  to  the  performance  of  any  particular  kind  of  duty  in  order  to 
be  brought  within  the  special  rule;  and  that  officers  detailed  as  in- 
structors at  such  camp  were  serving  with  troops  within  the  meaning 
of  said  provision,  if  they  had  been  assigned  to  and  entered  upon 
duty  with  commands  with  which  the  general  law  required  them  to 
serve  for  a  particular  period  and  such  assignment  of  duty  status  con- 
tinued concurrently  with  such  duty. 

(6-124,  J.  A.  G.,  July  6,  1914.) 


DETACHED  SERVICE:  Service  witli  troops;  field  officer  performing  duty 
as  commanding'  officer  and  in  other  capacities,  in  connection  with  a 
Coast  Artillery  district;  umpire  at  target  practice. 

The  detached-service  legislation  established  the  general  rule  that 
a  field  officer  of  the  line  must  have  been  actually  present  for  duty 
for  at  least  two  of  th"e  last  preceding  six  years  with  a  command  com- 
posed of  not  less  than  two  troops,  batteries,  or  companies  of  his 
branch  of  the  service  before  he  could  be  detached  from  such  com- 
mand for  duty  of  any  kind. 

Held^  that  a  Coast  Artillery  district  was  a  command  composed  of 
not  less  than  two  companies  of  Coast  Artillery  in  the  sense  of  said 
legislation,  and  that  a  field  officer  of  that  branch  of  the  service  per- 
forming duty  as  commanding  officer  of  a  Coast  Artillery  district, 
or  as  adjutant  or  as  materiel  officer  of  such  a  district,  should  be  con- 
sidered as  actually  present  for  duty  with  such  a  command.  Held 
further^  that  the  duties  of  an  umpire,  as  laid  down  in  the  regulations 
for  target  practice  of  the  Coast  Artillery  Corps,  were  not  organiza- 
tional or  functional  duties  pertaining  to  the  district,  were  not  in- 
herent in  the  organization,  and  were  not  regular  staff  duties  at  all, 
and  that  the  duties  of  such  an  umpire  could  not  be  held  to  be  duty 
performed  with  troopsi  in  the  field  within  the  meaning  of  the  pro- 
vision in  the  act  of  April  27,  1914  (Pub.  No.  91,  p.  7),  which  allows 
temporary  duty  of  any  kind  performed  Avith  United  States  troops  in 
the  field  for  periods  not  exceeding  (U)  days  in  any  one  calenchir  year 
to  be  counted  as  presence  for  duty  with  organizations  or  commands. 
(6-124,  J.  A.  G.,  July  10,  1914:) 


EMPLOYEES:  Of  the  United  States;  employment  of  foreigners  in  construct- 
ing improvements. 

The  question  was  raised  as  to  whether  the  War  Department  could 
give  a  preference  to  Americans  in  the  employment  of  skilled  and  un- 
skilled laborers  in  making  improvements  at  the  Presidio,  San  Fran- 


410        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

CISCO,  Cal.  The  constructing  quartermaster  at  San  Francisco  had 
been  hiring  labor  for  the  purpose,  taking  the  employees,  as  far  as 
possible,  from  the  list  of  eligibles  submitted  by  the  local  civil-service 
secretary,  but  in  cases  where  no  eligibles  were  furnished  he  employed 
the  men  who  were  the  most  suitable  and  the  most  available  for  the 
work,  without  regard  to  nationality. 

Held.,  that  the  restriction  suggested  could  not  lawfully  be  imposed 
by  the  Secretary  of  War  in  the  employment  of  labor  for  the  purpose 
mentioned,  but  that  the  matter  was  peculiarly  within  the  jurisdiction 
of  the  legislative  department  of  the  Government.  See  Dig.  Ops., 
J.  A.  a,  1912,  p.  373,  XXXIII  A. 

(4-350,  J.  A.  G.,  July  1,  1914.) 


EMPLOYEES:  Four-hour  day  on  Saturdays;  temporary  employees. 

The  Executive  order  of  June  9,  1914  (Bui.  No.  26,  W.  D.,  1914), 
prescribed  that  four  hours  should  constitute  a  daj'^'s  work  on  Satur- 
days from  June  15  to  September  15  of  each  year,  until  further  notice, 
"  for  all  clerks  and  other  employees  of  the  Federal  Government, 
wherever  employed."  The  question  arose  as  to  whether  the  order 
applied  to  per  diem  men  and  dock  seamen  employed  in  the  transport 
service  in  San  Francisco,  Cal.,  for  irregular  periods. 

Held.,  that  the  order  should  not  be  construed  so  as  to  include  within 
its  provisions  men  who  are  engaged  and  discharged  from  day  to  day, 
according  as  their  services  might  or  might  not  be  required,  but  that 
it  did  include  all  who  had  an  indefinite  status  whether  their  pay  was 
measured  by  the  day,  by  the  month,  or  by  the  year,  and  that  where 
such  employees  were  required  to  work  more  than  four  hours  on 
Saturdays  within  the  period  specified  in  the  Executive  order,  it 
should  be  in  pursuance  of  exceptions  prescribed  by  the  head  of  a 
department  for  public  reasons. 

(16-030,  J.  A.  G.,  July  23,  1914.) 


ENLISTED  MEN:  Of  the  Army;  service  in  the  volunteer  forces  or  in  the 
militia  when  called  into  the  service  of  the  United  States. 

Certain  enlisted  men  of  the  Regular  Army  desired  to  accept  com- 
missions in  the  organized  militia  for  service  in  the  United  States  or 
in  the  volunteer  forces  of  a  state  for  like  service.  Upon  considera- 
tion of  their  status  should  they  desire  to  reenlist  after  such  service — 

Helc^ 

1.  That  a  soldier  on  the  active  list  of  the  Regular  Army  could  not 
accept  a  commission  in  the  volunteer  forces  or  in  the  militia  in  the 
sei'vice  of  the  United  States  and  retain  his  status  as  an  enlisted  man 
in  the  Regular  Army;  and  that  for  such  purpose  he  could  not  be 
placed  on  an  indefinite  furlough,  but  must  be  discharged  from  the 
Regular  Army  before  accepting  such  commission. 

2.  That  in  the  event  of  his  discharge  from  the  Regular  Army  for 
the  purpose  of  enabling  him  to  accept  a  commission  in  the  vohmfceer 
forces  or  in  the  organized  militia  in  the  service  of  the  United  States, 
on  his  subsequent  return  to  the  ranks  of  the  Regular  Army  as  an 
enlisted  man  upon  his  muster  out  as  a  commissioned  officer  in  such 
service,  he  would  not  be  deprived  of  the  right  to  continuous-service 


DIGEST   OF   OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       411 

pay  earned  by  liim  "before  the  acceptance  of  his  commission,  provided 
he  reenlisted  in  the  Regular  Army  within  three  months  after  his  last 
discharge  therefrom,  exclusive  of  the  time  spent  by  him  as  such 
volunteer  or  militia  officer. 

3.  That  he  would  not  be  entitled  to  credit  for  his  volunteer  or 
militia  commissioned  service  either  for  continuous-service  pay  pur- 
poses or  for  retirement. 

(72-220.  J.  A.  G.,  July  21,  1914— two  cases.) 


HEAT  AND  LIGHT:  Heating  of  quarters,  not  public,   occupied  by  oflB.cers 
and  enlisted  men  on  temporary  duty. 

Certain  officers  and  enlisted  men  on  temporary  duty  at  Galveston, 
Tex.,  occupied  quarters,  not  public,  heated  by  separate  heating  and 
gas  plants.  It  was  assumed  that  they  were  not  drawing  any  fuel 
allowance  elsewhere,  and  that  they  were  occupying  said  quarters  by 
proper  authonty.  Paragraph  1026,  Army  Regulations,  1913,  as 
amended,  so  far  as  applicable,  provided : 

"  Where  an  officer  or  enlisted  man  is  occupying  quarters  other  than 
public  heated  by  a  separate  plant,  the  quartermaster  will  reimburse 
such  officer  or  enlisted  man  for  the  fuel  actually  necessary  for  the 
rooms  actually  occupied,  and  not  exceeding  the  number  to  which  the 
rank  of  the  officer  or  enlisted  man  entitles  him,  as  specified  in  para- 
graph 1044,  and  in  no  case  exceeding  the  maximum  allowance  set 
forth  in  the  following  table  for  the  zones  of  equal  temperature  in 
which  serving." 

Held^  that  the  officers  and  enlisted  men  could  not  be  furnished 
with  fuel  in  kind  under  the  above  regulation,  but  that  they  were 
entitled  to  be  reimbursed  for  the  fuel  purchased  by  them  actually 
necessary  to  heat  the  rooms  actually  occupied,  not  exceeding  the 
number  to  which  their  rank  entitled  them,  and  not  exceeding  in  cost 
the  maximum  allowance  for  the  zone  of  temperature  in  which  they 
were  serving. 

(72-313.  J.  A.  G.,  July  28,  1914.) 


MILITIA:    Organized,    engaging   in   joint    encampments    and   maneuvers; 
cost  of  transportation  of  subsistence  purchased  for. 

The  organized  militia  of  the  State  of  Iowa  was  about  to  engage 
in  a  joint  encamj^ment  and  maneuver  with  a  portion  of  the  Regular 
Army,  and  application  was  made  by  the  state  authorities  to  purchase 
from  the  United  States  quartermaster  at  the  camp  subsistence  stores 
of  the  Army  for  use  of  the  state  militia  at  said  encampment. 

Held^  that  subsistence  stores  might  be  supplied  by  the  officers  of 
the  Army  for  the  use  of  the  organized  militia  at  said  joint  encamp- 
ment at  cost  price,  with  cost  of  transportation  to  the  point  of  con- 
sumption added,  and  that  such  cost  should  be  charged  against  the 
militia  appropriations  available  for  joint  encampments. 

(94-500,  J.  A.  G.,  July  21,  1914.) 

Note. — In  an  indorsement  of  August  4,  1914,  in  this  case,  it  was 
held  that  the  same  rule  applied  to  all  subsistence  stores  furnished  to 
organized  militia  at  joint  encampments. 


412        DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL. 

NAVIGABLE  WATERS:  Obstructions  to  navig-ation;  authorization  by  the 
President  of  physical  connection  with  foreign  territory. 

Permission  in  general  terms  had  been  granted  by  the  President  to 
a  telegraph-cable  company  to  land,  construct,  maintain,  and  operate 
a  cable  connecting  its  foreign  cables  with  San  Juan,  Porto  Rico. 

Held,  that  the  power  of  the  President  to  grant  a  physical  connec- 
tion with  foreign  territory,  in  the  absence  of  a  statute  granting  or 
refusing  such  permission,  was  a  political  one  which  he  might  exercise 
subject  to  the  laws  governing  the  subject  matter ;  that  the  permission 
granted  was  subject  to  the  laws  of  the  United  States  for  the  protec- 
tion of  navigable  Avat^rs;  and  that  even  if  the  President  had  given 
his  consent  to  the  establishment  of  the  physical  connection  under 
such  conditions  as  he  saw  fit,  the  structures  proposed  to  be  placed  in 
the  navigable  waters  of  the  United  States  could  be  so  placed  only  in 
accordance  with  the  laws  governing  the  placing  of  structures  in  such 
navigable  waters.  Held  further^  that  the  company  should  be  required 
to  submit  its  plans  and  specifications  and  a  map  of  the  proposed  loca- 
tion of  it«  works,  for  approval  as  to  the  navigation  interests  involved. 

(62-390,  J.  A.  G.,  July  6,  1914.) 


PAY  OF  ENLISTED  MEN:   Continuous  service;   reenlistment  after  com- 
pleted enlistment  period  and  subsequent  dishonorable   discharge. 

Attention  is  invited  to  the  decision  of  the  Comptroller  of  the 
Treasury  of  June  3,  1914  (Bui.  No.  33,  W.  D.,  1914,  page  15),  as 
affecting  the  provisions  of  paragraph  III,  General  Orders  No.  44, 
War  Department,  June  24,  1913,  relating  to  the  notation  of  enlist- 
ment periods  upon  descriptive  and  assignment  cards  and  enlistment 
papers.  In  the  said  decision  it  was  held  that  enlistments  closed  by 
honorable  discharge  became  fixed  and  determined  when  the  honor- 
able discharge  was  given,  and  that  upon  reenlistment  after  three 
months  after  such  honorable  discharge,  a  soldier  should  be  carried 
as  in  his  second  enlistment  period,  notwithstanding  an  intervening 
dishonorable  discharge  from  another  enlistment. 


PUBLIC  PROPERTY:  Disposition  of  horse  injured  while  in  shipment;  duty 
of  common  carrier;  measure  of  damages. 

A  horse  belonging  to  the  Government  was  injured  while  in  ship- 
ment in  the  hands  of  a  common  carrier  so  as  to  be  useless  for  the 
public  service.  It  w^as  removed  from  the  car  at  an  intermediate 
station  between  the  place  of  shipment  and  destination,  and  was 
afterwards  sold  by  an  agent  of  the  carrier  to  a  private  party  for 
much  less  than  its  former  value.  The  horse  had  not  been  inspected 
and  condemned  nor  ordered  to  be  sold  by  any  officer  of  the  United 
States. 

Held^  that  it  was  the  duty  of  the  common  carrier  in  dealing  with 
the  property  to  act  for  the  best  interests  of  all  concerned,  and  that 
as  the  carrier  had  attempted  so  to  act  and  had  assumed  full  responsi- 
bility for  the  loss,  the  sale  might  properly  be  ratified ;  and  that  the 
measure  of  damages  was  the  value  of  the  horse  at  the  place  of  desti- 
nation, less  freight  for  shipment. 

(80-010,  J.  A.  G.,  July  8,  1914.) 


DIGEST    OF    OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       413 

BANK:  Commissioned  oflBicers  of  same  date  of  appointment;  commissioned 
service  in  the  Navy. 

Four  officers,  j^niduiites  of  the  United  States  Naval  Academy,  were 
appointed  second  lieutenants  in  the  Army  and  given  rank  according 
to  the  dates  of  their  gi-aduation  and  according  to  class  standing  as 
between  two  of  them  who  had  graduated  on  the  same  day. 

Section  1219,  Revised  Statues,  provided: 

"  In  fixing  relative  rank  of  officers  of  the  same  grade  and  date 
of  appointment  and  commission,  the  time  which  each  may  have 
actually  served  as  a  commissioned  officer  of  the  United  States, 
whether  continuously  or  at  different  periods,  should  be  taken  into 
account.     *     *     *." 

Two  of  the  officers  had  had  previous  commissioned  service  in 
the  Navy  which,  if  counted,  would  have  changed  the  order  of  rela- 
tive rank  among  them. 

Ileld^  that  the  statute  did  not  include  commissioned  service  in  the 
Navy  to  be  counted  in  determining  the  relative  rank  of  officers  of 
the  same  grade  and  date  of  appointment,  and  that  the  officers  were 
not  entitled  to  have  the  same  counted  in  deteiTQining  their  relative 
rank.    Dig.  Opin.,  J.  A.  G.,  1912,  p.  9G6,  A  2. 

(82-211,  J.  A.  G.,  July  23,  1914.) 


SOLDIERS:    Disposition    of   remains    of   deceased;    reward   for   recovery    of 
bodies. 

Two  enlisted  men  of  the  Army  had  been  drowned  and  rewards 
were  offered  for  the  recovery  of  their  bodies.  The  bodies  were 
recovered  in  pursuance  of  the  offer  and  application  made  for  the 
rewards.  The  sundry  civil  act  of  June  23,  1914  (38  Stat.,  31),  appro- 
priated for  the  disposition  of  remains  of  officers  and  soldiers  on  the 
active  list  of  the  Army,  including  expense  of  interment  of  such 
remains  and  of  their  preparation  and  transpoi-tation  to  their  homes 
or  to  national  cemeteries. 

Ileld^  that  the  work  of  recovering  the  bodies  was  an  incident  to 
their  proper  interment  and  preparation  and  transportation,  for 
Avhich  a  reward  might  properly  be  offered,  and  that  the  rewards 
should  be  paid  from  the  appropriation  for  the  disposition  of  the 
remains  of  officers  and  soldiers. 

(80-015,  J.  A.  G.,  July  17,  1914.) 


SOLDIERS'  HOME:    Admissions  to;   ability  of  applicant  to  earn  a  living 
outside. 

Two  discharged  soldiers  of  the  United  States  Army  were  admitted 
into  the  Soldiers'  Home,  Washington,  D.  C,  for  temporary  treat- 
ment for  disabilities  which  had  occasioned  their  discharge  from  the 
Army.  They  were  relieved  sufficiently  to  permit  of  their  earning 
their  living  outside  the  Home,  but  their  disabilities  were  such  that 
they  could  not  again  be  fitted  for  military  service.  Neither  had 
served  as  much  as  20  years  in  the  Army  when  discharged. 


414        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.. 

Section  4821,  Revised  Statutes,  defining  the  classes  of  persons 
entitled  to  the  rights  and  benefits  of  the  Soldiers'  Home,  prescribed 
as  admissible  thereto: 

"  Every  soldier  and  every  discharged  soldier,  whether  Regular  or 
Volunteer,  who  has  suffered,  or  may  suffer,  by  reason  of  disease  or 
wounds  incurred  in  the  service  and  in  the  line  of  his  duty,  rendering 
him  incapable  of  further  military  service,  if  such  disabilty  was  not 
occasoned  by  his  own  misconduct." 

Section  4823,  idem^  provided  that : 

"Any  soldier  admitted  to  the  Soldiers'  Home  for  disability  who 
recovers  his  health  so  as  to  become  fit  again  for  military  service,  if 
under  50  years  of  age,  shall  be  discharged." 

Held,  that  the  Soldiers'  Home  was  an  eleemosynary  institution 
for  the  dispensing  of  charitable  relief  to  the  classes  of  persons  de- 
scribed in  the  law  as  entitled  to  its  benefits,  which  benefits  included 
treatment  for  diseas^es  or  disabilities  of  soldiers  and  the  furnishing 
of  an  asylum  or  home  to  the  inmates,  and,  except  as  to  treatment  for 
disabilities  of  those  subject  to  discharge  when  fit  for  military  duty, 
the  benefits  of  the  institution,  owing  to  its  character,  could  be  ex- 
tended only  to  those  in  need  of  an  asylum  or  home  or  in  need  of 
medical  treatment  and  who  were  unable  to  provide  the  same  for 
themselves.  Held  therefore,  that  the  persons  in  question,  being  able 
to  earn  a  living  for  themselves  outside  the  institution,  were  properly 
denied  permanent  admission  thereto. 

(80-441.4,  J.  A.  G.,  July  17,  1914.) 


TRANSPORT  SERVICE :  Use  of  United  States  Army  transports  in  convey- 
ing Chinese  exhibits  to  the  Panama-Pacific  International  Exposition  at 
San  Francisco. 

A  request  was  made  by  the  commissioner  and  secretary  of  the 
Chinese  Republic  Commission  for  the  use  of  a  United  States  Army 
transport  in  conveying  Chinese  exhibits  to  the  Panama-Pacific  Inter- 
national Exposition,  at  San  Francisco,  Cal.  These  exhibits  were  the 
private  property  of  Chinese  merchants,  and  the  request  amounted  to 
one  for  the  use  of  Government  transports  in  transporting  private 
property. 

The  act  of  March  2,  1907  (34  Stat.,  1170),  contained  the  provision : 

"  That  no  part  of  this  appropriation  shall  be  applied  to  the  pay- 
ment of  the  expenses  of  using  transports  in  any  other  Government 
work  than  the  transportation  of  the  Army,  its  supplies,  and  em- 
ployees." 

field,  that  this  provision,  in  view  of  the  context,  has  been  regarded 
as  permanent  legislation  and  as  restricting  the  use  of  Government 
transports  to  the  purposes  stated  therein,  with  certain  exceptions 
expressly  authorized  by  Congress;  and  that  the  effect  of  the  statute 
for  to  prohibit  the  use  of  Army  transports  for  the  purpose  requested. 

(94-110,  J.  A.  G.,  July  30,  1914.) 


TRANSPORTATION: Settlement  for  unused  portion  of  ticket  furnished  an 
Army  nurse  for  transportation  to  her  home. 

A  railroad  company  issued  to  an  Army  nurse  a  ticket  in  exchange 
for  a  transportation  request  given  for  her  transportation  from  her 
duty  .station  in  San  Francisco,  Cal.,  to  her  home  in  Chicago,  111.,  with 


DIGEST  OF   OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL.       415 

a  view  to  her  discharge.  She  traveled  only  as  far  as  Ogden,  Utah., 
having  elected  to  remain  at  that  place  for  purposes  of  her  own. 

IJeld^  that  there  being  no  statute  giving  to  an  Army  nurse  the 
right  of  transportation  in  kind  to  her  home  on  discharge,  or  mileage 
in  lieu  thereof,  the  travel  performed  in  going  to  her  home  for  dis- 
charge was  travel  as  an  employee  of  the  United  States,  and  that  she 
had  no  right  to  any  }:)ortion  of  the  ticket  which  had  not  been  used, 
but  whatever  rebate  there  was  belonged  to  the  Government. 

(94-430,  J.  A.  G.,  July  20,  1914.) 


DECISIONS  OF  THE  COUETS. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

CONTRACTS:  Ajinulling'  for  default  of  contractor  and  reletting;  damages 
against  the  contractor. 

A  contract  was  entered  into  for  dredging  in  San  Pablo  Bay,  Cali- 
fornia, in  which  it  was  specifically  provided  that  the  spoil  or  waste 
from  the  dredging  should  be  dumped  behind  bulkheads.  On  the 
ground  that  the  contractor  had  failed  to  comply  with  the  require- 
ments of  his  contract,  the  Government  proceeded  under  a  paragraph 
in  the  contract  to  annul  the  same  and  to  complete  the  work  by  means 
of  another  contract.  In  the  advertisement  for  reletting  the  work 
the  option  was  given  to  dump  the  spoil  behind  bulkheads  as  required 
in  the  original  contract  or  to  dump  the  same  in  deep  water,  and 
the  contract  was  entered  into  on  the  basis  of  the  latter  alternative. 
Suit  was  brought  by  the  United  States  to  recover  damages  from  the 
contractor  and  his  sureties  for  failure  to  complete  he  work  as  con- 
tracted for. 

Held^  that  the  change  in  the  location  for  dumping  the  material 
dredged  was  a  material  one  and  amounted  to  an  important  variation 
from  the  original  contract  so  as  to  make  it  a  different  work  from 
that  which  the  original  contractor  was  to  perform,  and  that  such 
contractor  was  not  bound  for  the  difference  between  the  cost  of  the 
completed  work  under  the  original  contract  and  the  cost  under  the 
new  contract. 

{United  States  v.  Axmam.,  234  U.  S.,  36,  Mar.  9,  1914.) 


PAY  OF  OFFICEBS:  During  absence  with  leave;  leave  without  pay. 

An  officer  of  the  Army,  having  accepted  employment  with  a  com- 
mercial company,  was  granted  six  months'  leave  of  absence  which 
w^as  afterwards  extended  four  months.  After  the  expiration  of  six 
months  and  during  the  extension  of  the  leave  he  was  notified  that, 
by  direction  of  the  President,  although  his  leave  was  not  revoked,  his 
absence  would  be  without  pay.  The  officer  did  not  request  leave 
without  pay  nor  did  he  protest  against  the  action  of  the  President  or 
relinquish  his  leave  and  return  to  duty. 

Held.,  that  the  officer  was  entitled  to  pay  during  the  period  for 
which  it  was  directed  that  his  leave  should  be  without  pay,  and  judg- 
ment was  rendered  accordingly,  reversing  a  prior  decision  of  the 
court  in  the  same  case  (47  Ct.  Cls.,  51). 

{Andrews  v.  United  States,  Court  of  Claims  No.  30785,  Mar.  16, 
1914.) 


BULLETIN  43. 

Bulletin  1  WAR  DEPARTMENT, 

No.  43.    J  Washington,  September  25^  WlJf. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  August,  1914,  including  one  for 
July,  1914,  not  heretofore  published,  and  of  certain  decisions  of 
the  Comptroller  of  the  Treasury,  is  published  for  the  information 
of  the  service  in  general. 
[2194536A,  A.  G.  O.] 

By  ORDER  OF  THE  SECRETARY  OF  WaR  : 

W.  W.  WOTHER  SPOON, 

Major  General,  Chief  of  Staff. 
Official  : 

H.  P.  McCain, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ABSENCE:  On  account  of  disease  caused  by  misconduct;  pay  of  enlisted 
men. 

A  recruit  was  convicted  by  summary  court-martial  of  having 
Avhisky  in  his  possession  in  company  barracks  and  of  being  under 
the  influence  of  liquor  in  said  barracks,  and  Avas  sentenced  to  10 
days'  confinement  with  forfeiture  of  $2  of  his  pay.  He  had  enlisted 
subsequently  to  the  act  of  April  27,  1914,  which  provided  (Pub. 
No.  91,  p.  3),  that  no  enlisted  man  in  the  active  service  "who  shall 
be  absent  from  dut}^  on  account  of  disease  resulting  from  his  own 
intemperate  use  of  drugs  or  alcoholic  liquors,  or  other  misconduct, 
shall  receive  pay  for  the  period  of  such  absence,"  and  further,  "  that 
an  enlistment  shall  not  be  regarded  as  con>plete  until  the  soldier 
shall  have  made  good  anv  time  in  excess  of  one  day  lost"  on  said 
account. 

Held.,  that  the  "  other  misconduct "  mentioned  in  the  statute  was 
referred  to  as  a  cause  of  disease  and  not  as  a  cause  of  absence, 
and  that  while  the  soldier  would  be  required  to  make  good  any 
time  lost  in  excess  of  one  day  while  being  held  for  trial  or  under 
]iunishment  for  drunkenness  or  for  the  other  misconduct  mentioned, 
such  absence  would  not  be  attended  with  loss  of  pay  under  the 
statute. 

(34-0.52,  J.  A.  G.,  Aug.  20,  1914.) 


AVIATION   SERVICE:   Act   establishing    an    aviation   section;    repeal    of 
statute. 

The  act  of  March  2,  1913   (37  Stat.,  705),  provided  that  the  pay 
and  allowances  fixed  by  law  for  officers  of  the  Regular  Army  should 
be  increased  by  35  per  centum  for  officers  detailed  by  the  Secretary 
416 


DIGEST    OF    OPINIOXS    OF    THE    JUDGE    ADVOCATE    GENERAL.       417 

of  War  for  aviation  duty,  provided  that  such  increase  should  be 
given  only  to  such  officers  as  were  fliers  of  heavier-than-air  craft 
and  while  so  detailed.  The  act  of  July  18,  1914  (Pub.  No.  143), 
provided  for  the  organization  Avithin  the  Signal  Corps  of  a  section 
not  to  exceed  60  officers  and  260  enlisted  men,  the  officers  to  be 
detailed  from  the  line  of  the  Army  below  the  grade  of  captain,  for 
limited  periods,  the  extra  compensation  provided  for  them  being 
much  greater  than  that  provided  in  the  act  of  March  2,  1913.  This 
organization  was  charged  with  the  duty  of  operating  or  supervising 
the  operation  of  all  military  air  craft,  appliances  and  signaling  ap- 
paratus appertaining  thereto,  and  also  with  the  duty  of  training 
officers  and  enlisted  men  in  matters  pertaining  to  military  aA'iation. 
There  was  no  provision  in  the  later  act  specifically  repealing  the 
former. 

lield^  that  the  new  law  was  not  repugnant  to  the  old.  and  there 
being  no  specific  provision  in  the  new  act  repealing  the  old,  the  act  of 
March  2,  1913,  remained  in  force  and  was  in  no  way  destroyed  or 
diminished  bv  the  new  legislation. 

(6-228.1,  J.  A.  G.,  July  30,  1914.) 


CLERKS  AND  EMPLOYEES:  Detail  of;  diversion  of  appropriations. 

An  officer  of  the  Inspector  General's  Department  desired  the  serv- 
ices of  a  stenographer  wliile  inspecting  maneuver  camps  in  Oregon, 
and  the  quartermaster  at  Portland,  Oreg.,  offered  the  services  of  a 
stenographer  from  his  office. 

Held,  that  the  detail  of  a  cleric  from  the  office  of  the  quartermaster 
at  Portland  for  duty  with  an  inspector  in  making  inspections  of 
maneuver  camps,  would  be  a  violation  of  section  3678,  Revised  Stat- 
utes, providing  that — 

"All  sums  appropriated  for  tlie  various  branches  of  expenditure 
in  the  public  service  shall  be  applied  solely  to  the  objects  for  which 
they  are  respectively  made,  and  for  no  others  ■';  but  that  there  was  no 
legal  objection  to  the  employment  of  said  stenographer  by  the  In- 
spector General's  Department  if  the  employment  could  be  so  ar- 
ranged as  not  to  conflict  with  his  duties  in  the  Quartermaster  Corps. 

(6-224,  J.  A.  G.,  Aug.  6,  1914.) 


CONTRACTS:  Assignment  of,  to  svirety;  payment  to  assignee. 

A  contractor,  having  become  financially  involved  and  imable  to 
complete  his  contract,  assigned  the  same,  after  a  portion  of  the  work 
had  been  performed,  to  the  surety  company  on  his  contract  bond,  and 
executed  a  power  of  attorney  to  said  company  authorizing  it  to  col- 
lect from  the  Government  all  amounts  due  and  to  become  due  for 
work  done  under  the  contract. 

Held,  that  in  view  of  the  fact  that  the  surety  company  had  an 
equitable  right  to  complete  the  work  in  default  of  the  contractor  and 
to  have  all  moneys  due  applied  to  the  discharge  of  the  claims  of  labor 
and  material  men  {Richards  Brick  Co.  v.  BofktrcJJ,  18  App.  Cases 
(D.  C),  516;  31arblc  Co.  v.  Bimjdorf,  13  idem,  506,  509),  the  assign- 

93668°— 17 27 


418        DIGEST    OF    OPINIONS    OF    THE    JUDOE    ADVOCATE    GENERAL. 

ment  was  not  vrithin  the  prohibition  of  section  34:77,  Revised  Stat- 
utes, forbidding  the  transfer  of  chiims  against  the  GoAernment,  or 
of  section  3737,  idem^  prohibiting  the  assignment  of  Government  con- 
tracts; and  that,  in  view  of  the  further  fact  that  the  assignee  hekl  a 
power  of  attorney  from  the  contractor  authorizing  it  to  complete  the 
work  and  to  collect  all  moneys  due,  payment  might  be  made  to  it, 
not  only  of  all  amounts  due  the  contractor  and  unpaid,  but  also  of 
amounts  due  for  work  performed  by  the  surety  company.  Dig. 
Comp.  Dec.  336. 

(76-500,  J.  A.  G.,  Aug.  10,  1914.) 


EIGHT-HOUR  LAW :  Horse  breakers  and  farm  hands. 

It  was  found  necessary  to  increase  the  hours  of  labor  to  eight  and 
one-half  hours  per  day  for  certain  horse  breakers  and  members  of  the 
farm  gang  at  the  Fort  Eeno.  Okla.,  remount  depot,  owing  to  the  con- 
dition of  work  thereat  and  to  the  existence  of  a  heavy  corn  crop 
which  required  to  be  cut  and  removed  at  once  in  order  to  avoid  mate- 
rial loss  to  the  Government.  Section  1  of  the  act  of  March  3,  1913 
(37  Stat.,  726),  limited  the  service  and  employment  "of  all  laborers 
and  mechanics  "  employed  by  tlie  Government  upon  a  public  work 
of  the  United  States,  to  eight  hours  in  any  one  calendar  day,  and 
made  it  unlawful  to  require  or  permit  such  laborers  or  mechanics  to 
work  for  a  longer  time  except  in  cases  of  emergency. 

Ileld^  that  said  law  did  not  apply  to  farmers  or  farm  hands;  that 
the  horse  breakers  and  the  farm  gang  should  be  regarded  as  farm 
hands  and  not  as  laborers  or  mechanics  within  the  meaning  of  the 
eight-hour  statutes;  and  that  they  were,  therefore,  not  subject  to  the 
restrictions  of  said  statutes.    Opin.  J.  A.  G.,  Sept.  27.  1913. 

(76-720,  J.  A.  G.,  Aug.  29,  1914.) 


EMPLOYEES:   Of  the   Quartermaster  and  Medical   Corps;  issue  of  fuel  in 
kind  to;  Army  Regulations. 

Paragraph  1044,  Army  Hegulations,  1913,  before  amendment  pro- 
vided for  a  fuel  allowance  for  "  each  employee  of  the  Quartermaster 
Corps  or  Medical  Corps  to  whom  subsistence  in  kind  is  furnished  by 
the  Government."  Changes  Army  Regulations,  No.  7,  June  11,  1914, 
in  amending  said  regulation,  omitted  all  proA'ision  for  allowance  of 
fuel  in  kind,  including  the  allowance  theretofore  provided  for  civilian 
employees,  but  specified  the  number  of  rooms  to  which  officers  and 
enlisted  men  in  quarters  were  entitled  and  the  allowance  of  cooking 
and  heating  stoves  supplied  for  their  use,  including  also  stoves  for 
civilian  employees. 

Held.,  that  there  was  no  law  which  provided  for  a  fuel  allowance 
to  civilian  employees  serving  with  the  Army,  and  that  they  became 
entitletl  to  the  benefits  of  heat  and  light  in  (juarters  only  by  reason 
of  the  character  of  their  service  or  their  contracts  of  employment, 
and  were  not  entitled  thereto  as  a  personal  allowance. 

Held  further,  that  fuel  might  still  be  issued  to  such  civilian  em- 
ployees as  theretofore,  although  unprovided  for  bv  regulations. 

(16-400,  J.  A.  G.,  Aug.  18,  1914.) 


DIGEST    OF    OPHSTIONS    OF    THE    JUDGE   ADVOCATE   GENERAL.       419 

HEAT  AND  LIGHT :   Furnislied  to   officers'   quarters  while  on  temporary- 
duty  with  troops. 

An  ofiicer  on  duty  with  troops  at  Laredo,  Tex.,  with  permanent 
station  at  Fort  Thomas,  K3'.,  occupied  puljlic  (juarters  at  Laredo 
suitable  to  his  rank.  He  had  closed  his  quarters  at  his  permanent 
station.  The  act  of  February  27,  1893  (27  Stat.,  478),  provided  that 
officers  tenii)orarily  absent  on  duty  in  the  field  shoidd  not  lose  their 
right  to  (itiarters  or  connimtation  thereof  at  their  permanent  stations 
while  so  temporarily  absent,  and  the  act  of  March  2,  1907  (34  Stat., 
1167),  provided  for  furnishing  at  Crovernment  expense  heat  and  light 
"actually  necessary  for  the  authorized  allowance  of  quarters  for 
officers  and  enlisted  men.'' 

IleJd^  that  while  the  law  allowed,  for  the  time  being,  a  dupli- 
cation of  (juarters  to  officers  temporarily  absent  on  duty  in  the  field, 
one  set  at  the  officer's  permanent  station  and  another  in  the  field, 
there  was  no  authority  for  heating  and  lighting  both  sets  of  quarters 
at  Government  expense,  but  that  the  officer  might  be  provided  with 
heat  and  light  for  his  temporary  quarters  where  he  was  serving,  if  it 
were  shoAvn  that  no  such  allowances  had  been  provided  at  GoAern- 
ment  expense  for  his  quarters  at  his  permanent  station. 

(72-310,  J.  A.  G.,  Aug.  13,  191L) 


MARINES:    Quartermaster    stores    supplied    to,    while    serving    with    the 
Army;  reimbursement  of  appropriations. 

Certain  marines  who,  by  order  of  the  President,  were  serving  with 
the  Army  in  Vera  Cruz,  Mexico,  had  been  supplied  by  the  Quarter- 
master's Department  of  the  Army  with  quailermaster  stores  needed 
for  their  ser\ice.    Section  1135,  Revised  Statutes,  provided  that — 

"  The  officers  of  the  Quartermaster's  Department  shall,  upon  the 
requisition  of  the  naval  or  marine  officer  commanding  any  detach- 
ment of  seamen  or  marines  under  orders  to  act  on  shore,  in  coopera- 
tion with  land  troops,  and  during  the  time  such  detachment  is  so 
acting  or  proceeding  to  act,  furnish  the  officers  and  seamen  with 
camp  equipage,  together  with  transportation  for  said  officers,  seamen, 
and  marines,  their  baggage,  provisions,  and  cannon,  and  shall  furnish 
the  naval  officer  commanding  any  such  detachment,  and  his  necessary 
aids,  with  horses,  accouterments,  and  forage."' 

Held.,  that  the  appropriation  for  the  Quartermaster  Corps  should 
be  reimbursed  from  ^Marine  Corps  appropriations  for  supplies  so  fur- 
nished. Op.  J.  A.  G.,  C  20461,  Jan.  31,  1907;  id.  5-242,  June  1,  1914; 
13  Comp.  Dec,  529. 

(5-242,  J.  A.  G.,  Aug.  12,  1914.) 


MILITIA:    Organized;   pay   of,    while   attending   encampment;    rank   above 
commission. 

An  officer  of  the  organized  militia  Avas  commissioned  a  first  lieuten- 
ant in  the  quartermaster's  department  of  the  state,  but  b}^  special 
order  of  the  iuljutant  general's  office  of  the  state  his  commissicm,  with 
that  of  certain  other  officers,  was  continued  in  force  for  state  military 


420       DIGEST   OF   OPIlsriONS   OF    THE    JUDGE   ADVOCATE    GENEEAL. 

])iirposes,  but  for  United  States  service  or  other  service  entitling  him 
to  Federal  pay,  his  rank  was  raised  to  captain.  The  organized 
militia  of  the  state  was  made  to  conform  to  the  Federal  militia  law, 
which  required  that  the  organization  of  the  organized  militia  should 
conform  to  that  of  the  Eegular  Army  of  the  United  States.  In  the 
Regular  Army  no  provision  was  made  for  a  first  lieutenant  in  the 
organization  of  the  Quartermaster  Corps. 

Held.,  that  the  officer,  while  attending  an  encampment  of  the  or- 
ganized militia,  should  be  regarded  as  a  first  lieutenant  in  said 
militia  for  pay  purposes,  and  could  not  be  paid  as  of  the  rank  of 
captain. 

(58-600,  J.  A.  G.,  Aug.  21,  1914.) 


NEUTRALITY:  Admission  of  sick  and  wounded  belligerents  to  Army  hos- 
pital. 

It  was  currently  reported  that  there  were  in  the  neighborhood  of 
San  Francisco,  Cal.,  a  number  of  naval  vessels  belonging  to  two  Eu- 
ropean powers  then  at  war  with  each  other,  and  the  question  arose  as 
to  Avhether  the  facilities  of  the  United  States  hospital  at  that  place 
might  be  extended  to  the  sick  and  wounded  belligerents. 

Ileld^  that  international  law  has  long  recognized  it  to  be  a  proper 
act  of  humanity  to  grant  asylum  to  soldiers  and  sailors  of  a  bellig- 
erent (2  Oppenheim,  410),  and  that  if  the  commander  of  a  belligerent 
ship  of  war  should  request  it,  the  benefits  of  the  Army  hospital  might 
be  extended  to  the  sick  and  wounded  officers  and  seamen  of  such  ves- 
sels, but  on  the  condition  that  such  officers  and  seamen  should  become 
interned  prisoners. 

(99-700,  J.  A.  G.,  Aug.  15,  1914.) 


PRIVATE  PROPERTY:  Loss  of,  dvie  to  artillery  practice;  articles  necessary 
for  use  in  quarters. 

An  officer  of  the  Army  sustained  the  loss  of  a  quantity  of  china  and 
glassware  which  he  valued  at  $620,  which  loss  was  occasioned  by  the 
falling  of  a  china  closet  in  which  it  was  contained,  in  his  quarters  at 
West  Point,  N.  Y.  The  falling  of  the  closet  was  due  to  heavy  artil- 
lery practice  at  the  post  coupled  with  faulty  construction  of  the 
closet. 

Held.,  that  from  the  unusually  expensive  character  of  the  articles 
destroyed,  they  could  not  be  considered  such  as  the  Secretary  of  War 
should  determine  to  be  reasonable,  useful,  and  necessary  for  the  officer 
in  service  while  in  quarters,  within  the  meaning  of  the  act  of  March 
3,  1885  (23  Stat.,  350),  but  that  the  claim  might  be  adjusted  and  re- 
j5orted  to  Congress  for  appropriation  under  the  provisions  of  the  act 
of  August  24,  1912  (37  Stat.,  586),  as  a  loss  of  private  property  not 
exceeding  $1,000  in  value  occasioned  by  heavy  gun  fire  and  target 
])ractice  of  troops,  the  act  apphing  to  losses  of  private  property  of 
officers  residing  upon  military  reservations  as  well  as  to  losses  of  the 
])ropertv  of  civilians. 

(18-463,  J.  A.  G.,  Aug.  31,  1914.) 


DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL.        421 

PUE,CHASE  OF  SUPPLIES:  From  persons  iu  the  military  service. 

A  corporation  duly  organized  under  the  laws  of  the  State  of  Kansas 
submitted  a  bid  for  supplying  butter  at  Fort  Riley  in  said  state  for  the 
month  of  June,  1914.  The  secretary  of  the  company  was  a  (Tovern- 
ment  clerk  in  the  United  States  Mounted  Service  School.  Paragraph 
521,  Army  Regulations,  1913,  prohibited  the  purchase  of  supplies  for 
the  Government  from  any  |)erson  in  the  military  service  or  the  con- 
tracting with  any  such  person  to  furnish  supplies  or  service  to  the 
Government. 

Held^  that  said  regulations  did  not  apply  to  contracts  made  with 
incorporated  companies  (Dig.  Op.  J.  A.  (i..  1912,  p.  353  A  5),  and  rec- 
ommended that  the  company  be  informed  that  the  fact  that  some  of 
its  officers  or  stockholders  miglit  be  employed  in  the  military  service 
did  not  disqualify  it  from  submitting  proposals  to  furnish  supplies, 
but  that  paragraph  527  of  the  same  regulations  prohibited  {persons 
belonging  to  or  employed  in  the  military  service  from  rendering  as- 
sistance in  the  preparation  of  ])roposals. 

(76-331.4,  J.  A.  G.,  Aug.  4,  1914.) 


REENLISTMENT :  After  four  years'  service  and  passing  to  the  reserve. 

The  first  proviso  of  section  2  of  the  act  of  August  24,  1912  (37  Stat., 
590),  provided  that  at  the  expiration  of  four  years'  continuous  service 
under  a  first  or  a  subsequent  enlistment  a  soldier  might  be  enlisted 
for  another  period  of  seven  years,  and  that  in  such  event  he  should 
receive  his  final  discharge  from  his  prior  enlistment.  The  sixth  pro- 
viso of  said  section  provided — 

"  That,  except  upon  reenlistment  after  four  years'  service  or  as  now 
otherwise  provided  for  by  law,  no  enlisted  man  shall  receive  a  final 
discharge  until  the  expiration  of  his  seven-year  term  of  enlistment, 
*  *  *  but  any  such  enlisted  man  may  be  reenlisted  for  a  further 
term  of  seven  jj'ears  under  the  same  conditions  in  the  Army  at  large." 

Held^  that  a  soldier  who  had  [not]  been  reenlisted  immediately 
after  the  completion  of  four  years'  service,  but  who  had  passed  to  the 
reserve,  might  be  reenlisted  for  another  term  of  seven  years  upon  the 
condition  precedent  that  he  be  given  by  the  Secreary  of  War  a  final 
discharge  from  his  prior  enlistment  for  the  purpose  of  such  reenlist- 
ment, such  a  discharge  being  authorized  in  the  interests  of  the  Gov- 
ernment. 

(6-300,  J.  A.  G.,  Aug.  22,  1914.) 


VEHICLES:  Passenger-carrying;  ambulances. 

Section  5  of  the  act  of  July  16,  1914  (Pub.  No.  127,  p.  61),  pro- 
vided in  part  as  follows: 

"  No  appropriation  made  in  this  or  any  other  act  shall  be  available 
for  the  purchase  of  any  motor-propelled  or  horse-draAvn  passenger- 
carrying  vehicle  for  the  service  of  any  of  the  executive  departments 
or  other  Government  establishments,  or  any  branch  of  the  Govern- 
ment service,  unless  specific  authority  is  given  therefor." 


422        DIGEST    OF   OPINIONS   OF    THE    JUDGE   ADVOCATE    GENERAL. 

The  use  of  ambulances  for  carrying  passengers  was  forbidden  by 
Army  Eegiilations. 

Held^  that  the  normal  use  of  an  ambulance  was  for  carrying  sick 
and  wounded  and  necessary  nurses  or  attendants  on  duty  therewith, 
who  were  not  passengers  within  the  general  meaning  of  the  term,  and 
that  an  ambulance,  although  capable  of  being  usecl  for  carrying 
passengers,  was  not  a  passenger-carrying  vehicle  within  the  meaning 
of  the  provision  referred  to. 

(94-012,  J.  A.  G.,  Aug.  14,  IDU.j 


VOLUNTARY  SEBVICE:  Caring  for  and  returning  lost  property. 

A  horse  belonging  to  a  battery  of  the  Fourth  Field  Artillery  sta- 
tioned in  Texas  strayed  from  the  battery  stables  during  the  night 
and  was  taken  up  by  a  i)rivate  citizen,  cared  for,  and  returned  to 
the  military  authorities.  A  claim  Avas  presented  for  the  care  of  the 
animal  and  for  forage  fed  to  it  before  its  return.  No  reward  had 
been  oifered  for  the  horse's  return,  and  there  were  no  facts  upon 
which  to  base  a  contract  to  paj^  for  the  services  rendered.  The 
statutes  of  the  state  did  not  give  a  lien  upon  the  horse  in  favor  of 
the  person  taking  it  up  and  returning  it  under  the  conditions  stated. 

Held,,  that  the  services  rendered  were  purely  voluntary,  and  that 
no  authority  existed  for  the  payment  of  the  claim.  5  Comp.  Dec, 
37:  11  idem^  741. 

(80-010,  J.  A.  G.,  Aug.  28,  1014.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

BAILMENT:   For  hire;  responsibility  for  loss  of  horse  used  contrary  to 

contract. 

A  quartermaster  of  the  organized  militia  hired  a  team  from  a 
private  citizen  for  use  as  draft  animals  in  connection  with  forces 
engaged  in  joint  maneuvers.  The  circular  adA'ertising  for  proposals 
stated  that  each  horse  must  be  able  to  stand  the  necessary  drive  of 
not  to  exceed  12  miles  each  day  with  a  load  of  3,000  pounds  or  less 
for  a  four-line  team.  The  team  in  which  the  horses  were  used  was 
frequently  required  to  haul  more  than  the  maximum  load  fixed  in 
the  advertisement,  for  a  greater  distance  per  day,  and  over  roads 
very  lieaAy  and  slippery;  and  Avas  also  subjected  to  extra  hauling 
in  bringing  up  food  for  the  soldiers  on  rush  orders.  On  coming  in 
from  one  of  such  extra  trips  one  of  the  horses  was  worn  out  and 
shortly  thereafter  dropped  dead,  due  to  overexertion. 

Held,  that  the  case  was  one  of  bailment  for  hire  for  the  mutual 
benefit  of  the  parties,  and  the  horse  having  been  used  for  a  purpose 
substantially  different  from  that  for  which  it  had  been  hired,  and 
which  use  caused  its  death,  the  Government  was  liable  for  the  loss 
of  the  horse  and  the  claimant  was  entitled  to  be  paid  its  value. 

(Comp.  Geo.  E.  Downey,  Aug.  7,  1914.) 


DIGEST    OF    OPINIOISrS   OF    THE   JUDGE   ADVOCATE   GENERAL.       423 

COMMUTATIOiSr  OF  QUARTERS:  Assignment  of,   insufficient  for  family; 
station  at  place  of  clvity. 

An  oilicer  of  the  Ordnance  Department  of  the  Army  was  directed 
to  "  proceed  to  New  York  City,  take  station  at  that  place,  and  report 
to  the  commanding  oilicer  of  the  Sandy  Hook  Proving  Ground,  N.  J., 
lor  duty."  At  tlie  proving  ground  there  was  a  brick  liouse  owned  by 
the  Government  and  used  as  quarters  for  officers  on  duty  tliere, 
which  quarters  consisted  of  one  room  for  each  officer,  who  also 
had  the  use  in  common  with  others  of  a  dining  room,  a  sitting  room, 
and  a  reading  room.  The  rooms  were  not  adapted  to  the  use  of  a 
famih',  and  it  was  not  permitted  for  officers  to  \vd\e  their  families 
there  with  them.  The  officer  was  furnished  with  quarters  in  this 
building  of  the  character  described.  He  had  no  duty  to  perform  at 
New  York  City. 

Held,  that  liaving  no  duty  to  perform  at  New  York  City,  the  order 
directing  him  to  take  station  there  could  not  operate  to  give  him  a 
right  to  commutation  of  quarters  as  at  that  place  (7  Comp.  Dec, 
50:i),  but  that  the  actual  station  of  the  officer  was  at  the  place  where 
his  duties  were  to  be  performed  (20  id.,  664).  Held  further^  that 
quarters  were  the  right  of  an  officer  for  his  personal  use,  and  the 
Government  was  not  obliged  to  furnish  them  for  his  family,  nor  was 
the  availability  for  occupancy  by  a  family  the  test  of  suitability  of 
quarters;  that  the  officer  had  been  furnished  with  quarters  (9  id.^ 
736)  ;  and  that  he  was  not  entitled  to  the  commutation  paid  him 
therefor. 

(Acting  Comp.  W.  W.  Warwick,  Aug.  25,  1914.) 


CONTRACTS:  Assignment  of;  payment  to  assignee. 

The  Treasury  Department  entered  into  a  contract  for  the  construc- 
tion of  a  Federal  building  at  Wahpeton,  N.  Dak.  After  a  consider- 
able amount  of  work  had  been  done,  permission  was  asked  to  transfer 
the  contract  to  the  contractor  for  another  Government  building,  no 
change  to  be  made  in  tlie  terms  of  the  contract. 

Held,  that  while  the  transfer  by  one  contractor  to  another  of  his 
rights  under  a  Government  contract  in  violation  of  section  3737, 
lievised  Statutes,  did  not  ipso  facto  annul  the  contract,  but  only  gave 
the  Government  a  right  to  annul  the  same,  there  was  no  authority  for 
the  officers  of  the  Government  to  approve  a  proposed  assignment  or 
to  recognize  it  in  advance ;  that  in  the  event  of  such  transfer  the  Gov- 
ernment might  annul  the  contract  and  relet  the  work,  or  permit  the 
work  to  be  done  by  the  contractor's  assignee  as  his  agent,  the  original 
contractor  in  either  event  to  remain  liable  for  any  damages  resulting 
from  his  failure  to  carry  out  the  original  undertaking;  but  that  the 
department  would  not  be  authorized  to  pay  the  contract  price  to  the 
assignee. 

(Comp.  Geo.  E.  Downey,  Aug.  4,  1914.) 

Note. — Where  the  assignment  is  to  the  surety  on  the  bond  of  the 
contractor,  see  opinion  of  J.  A.  G.  of  August  10,  1914,  page  3,  ante; 
also  9  Comp.  Dec,  43. 


424        DIGEST    OP    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

EXPENSES:  Entertaining  foreign  ofl5.cials;  transportation  of  Army  officer 
engaged  in. 

An  automobile  was  hired  by  verbal  authority  of  an  official  of  the 
War  Department  for  the  transportation  from  Washington,  D.  C,  to 
Gettysburg,  Pa.,  and  return,  of  officers  of  the  British  Government  in 
this  country  on  an  official  mission  and  an  officer  of  the  General  Staff 
of  the  Army  acting  as  their  escort.  A  voucher  was  approved  for 
payment  from  the  appropriation  for  the  transportation  of  the  Army 
and  its  supplies. 

Held^  that  the  journey  was  in  the  nature  of  an  entertainment  of 
British  officials  and  the  hire  of  the  automobile  could  not  be  regarded 
as  a  hire  for  official  or  military  purposes,  and  that  there  was  no  ap- 
propriation in  the  Army  appropriation  act  or  any  other  appropria-. 
tion  available  for  the  hire  of  an  automobile  for  the  purposes  indi- 
cated. 

(Comp.  Geo.  E.  Downey,  Aug.  8,  1914.) 


EXPENSES:  Of  military  attache  abroad;  traveling  expenses;  pay  of  orderly 
and  pay  for  tips.  » 

An  officer  of  the  Army  presented  an  account  for  reimbursement  of 
his  expenses  while  a  military  attache  at  the  American  legation  at  St. 
Petersburg,  Russia.  The  account  represented  cost  of  transportation 
to  and  from  maneuvers  which  took  place  about  13  miles  from  St. 
Petersburg,  his  permanent  station,  the  pay  of  an  orderly,  and  tips 
given  by  attaches  generally. 

Held^  that  as  the  officer  was  designated  to  obtain  military  informa- 
tion and  as  his  travel  was  considered  necessary  or  desirable  for  the 
purpose,  the  necessary  expenses  of  transportation  to  and  from  the 
maneuvers  i^ertained  to  his  duties  as  military  attache  and  should  be 
paid  by  the  United  States  (19  Comp.  Dec,  594).  Held  further^  that 
the  items  for  pay  of  an  orderly,  and  for  tips,  were  personal  expenses 
and  not  properly  chargeable  against  the  United  States,  and  in  the 
absence  of  any  law  authorizing  the  same  they  must  be  borne  by  the 
officer  himself.    66"  MSS.  Comp.  Dec,  433,  Jan.  19,  1914. 

(Acting  Comp.  W.  W.  Warwick,  Aug.  19,  1914.) 


PURCHASE  OF  SUPPLIES:  In  open  market;  advertising  for  contract. 

The  Comptroller  on  his  own  motion  revised  certain  settlements  of 
the  Auditor  for  the  War  Department  involving  the  purchase,  without 
advertising,  of  supplies  for  the  use  of  the  Army  in  excess  of  the  limit 
of  $500  authorized  to  be  purchased  without  advertising  by  the  amend- 
ment to  section  3744,  Revised  Statutes,  contained  in  the  act  of  June 
12, 1906  (34  Stat.,  258). 

Held,  that  said  statute  as  amended  permitted  purchases  in  open 
market  of  supplies  for  all  branches  of  the  Army  service  when  the 
aggregate  amount  required  did  not  exceed  $500,  and  that  in  the 
future  payments  made  by  disbursing  officers  in  excess  of  that  limit 
for  supplies  or  services  must  be  based  on  advertisement  and  written 

(Comp.  Geo.  E.  Downey,  July  28,  1914.) 


DIGEST    OF    OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL.       425 

QUARTERS:  Hire  of,  by  pay  clerk  where  not  furnished  quarters  in  kind; 
reimbursement. 

A  pay  clerk  in  the  Army  in  pursuance  of  orders  reported  to  the 
quartermaster  at  the  Presidio,  KSan  Francisco,  Cal.,  for  assignment 
to  duty.  He  applied  for  quarters  for  himself  which  were  refused  by 
the  commanding  officer  for  the  stated  reason  that  there  were  no 
quarters  at  that  place  available  for  assignment  to  said  pay  clerk. 
The  department  quartermaster  requested  that  quarters  be  hired  for 
him,  but  the  Chief  of  the  Quartermaster  Corps  stated  that  no  funds 
were  available  for  the  purpose  and  no  quarters  were  hired.  The  pay 
clerk  thereupon  hired  quarters  for  himself  and  applied  for  reim- 
bursement. 

Ueld^  that  if  at  the  time  he  applied  for  quarters  there  were  linas- 
signed  quarters  at  the  post,  he  was  denied  a  right  to  which  he  was 
entitled,  and  if  there  were  no  public  quarters  available  he  had  the 
same  right  to  have  quarters  rented  for  his  use  as  any  other  officer  of 
the  Army ;  but  that  the  wrongful  act  of  an  officer  of  the  Government 
in  refusing  to  provide  quarters  for  him  did  not  raise  a  legal  claim 
against  the  Government,  and  the  pay  clerk  could  not  be  reimbursed 
for  the  renting  of  (juarters  for  himself  or  paid  commutation  there- 
for. 

(Acting  Comp.  W.  W.  Warwick,  Aug.  28,  1914.) 


RETIRED  ENLISTED  MEN:  Allotment  of  pay. 

A  retired  enlisted  man  of  the  Army  signed  a  written  request  to 
have  a  portion  of  his  monthlv  pav  paid  to  his  Avife  until  further 
notice.  Section  16  of  the  act  of  March  2,  1899  (30  Stat.,  981),  au- 
thorized the  Secretary  of  War  to  permit  enlisted  men  to  make  allot- 
ments of  their  pay  for  the  support  of  their  families  and  for  other 
purposes  "  during  such  time  as  they  may  be  absent  on  distant  duty, 
or  under  other  circumstances  warranting  such  action." 

Helfu  that  the  act  applied  to  enlisted  men  on  the  active  list  and 
not  to  retired  enlisted  men;  that  the  allotment  was  unauthorized; 
and  that  the  request  should  not  be  recognized  for  the  purpose  of 
drawing  a  check  in  favor  of  the  soldier's  wife. 

(Acting  Comp.  W.  ^N.  Warwick,  Aug.  22,  1914.) 


TRAVEL  ALLOWANCES:  On  discharge;  enlisted  men;  transportation  from 
place  of  discharge. 

The  act  of  August  24,  1912  (37  Stat.,  576).  provided  that  when 
an  enlisted  man  of  the  Army  was  discharged  from  the  service,  except 
by  way  of  punishment  for  an  offense,  he  should  be  entitled  to  trans- 
portation in  kind  and  subsistence  from  the  place  of  discharge  to  place 
of  enlistment  or  to  such  other  place  Avithin  the  continental  limits  of 
the  United  States  as  he  might  select  to  which  the  distance  Avas  no 
greater.  A  discharged  soldier  had  been  furnished  transportation 
from  a  place  other  than  his  place  of  discharge  to  a  place  other  than 
his  place  of  enlistment,  the  distance  being  less  than  from  place  of 
discharge  to  place  of  enlistment,  but  the  distance  from  place  of  dis- 


426        DIGEST    OF    OPINIONS    OF    THE   JUDGE   ADVOCATE   GENERAL. 

charge  was  greater  to  the  place  to  which  transportation  was  fur- 
nished than  to  the  phice  of  enlistment, 

Ileld^  that  the  issuance  of  transportation  from  a  place  other  tlian 
the  place  of  a  soldier's  discharge  or  to  a  place  the  distance  to  which 
w'as  greater  than  from  place  of  discharge  to  place  of  enlistment,  was 
unauthorized.  The  Comptroller  declined  to  laj^  down  a  rule  for  the 
adjustment  of  the  account  of  an  officer  issuing  transportation  in  ex- 
cess of  that  to  wdiich  the  soldier  might  be  entitled,  as  that  would  be 
to  anticipate  a  violation  of  the  law. 

(Comp.  Geo.  E.  Downey,  Aug.  4,  1914.) 


TRAVEL  ALLOW AIaTCES:  On  discharge;  transportation  varying  from  re- 
quest. 

The  act^of  xVugust  24,  1912  (37  Stat.,  576),  provided  for  enlisted 
men  discharged,  except  by  way  of  punishment  for  an  offense,  trans- 
portation from  place  of  discharge  to  place  of  enlistment  or  to  any 
other  place  within  the  continental  limits  of  the  United  States  to 
which  the  distance  was  no  greater.  Pullman  transportation  requests 
were  issued  to  the  Pullman  Co.  by  the  quartermaster  at  Fort  Mc- 
Dowell, Cal.,  to  three  discharged  enlisted  men  of  the  Army  calling 
for  an  upper  berth  from  San  Francisco,  Cal.,  to  El  Paso,  Tex.,  to 
Buffalo,  N.  Y.,  and  to  Washington,  D.  C,  respectively.  Instead, 
the  Pullman  Co.  furnished  from  San  Francisco,  one  lower  berth  in  a 
tourist  sleeper  to  Portland,  Oreg.,  one  to  New  Orleans.  La.,  and  one 
to  Chicago,  111.,  aggregating  $14.25  in  cost  as  against  $16.80  had 
Pullman  berths  been  furnished  according  to  the  requests. 

Ileld^  that  the  transportation  request  was  an  order  by  an  agent  of 
the  Government  on  the  carrier  to  furnish  the  class  or  character  of 
transportation  specified  therein,  between  the  points  named,  and  to 
the  persons  named  in  the  request,  and  that  as  the  transportation  fur- 
nished was  not  that  which  was  requested  by  the  Government, 
there  was  no  privity  of  contract  between  the  Government  and  the 
company  with  respect  thereto.  Under  the  circumstances  the  account 
presented  w^as  allowed  as  arising  not  upon  the  request,  but  upon  a 
quantum  mendt;  but  advised  that  transportation  companies  should 
be  given  to  understand  that  they  must  adhere  to  the  stipulations  of 
the  request  or  run  the  risk  of  having  their  claims  for  transportation 
denied. 

(Comp.  Geo.  E.  Downey,  Aug.  14,  1911.) 


BULLETIN  46. 

Bulletin  1  WAR  DEPARTMENT, 

No.  40.    J  Washington,  October  2 If,  19 J 4. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  September,  1914,  and  of  certain  deci- 
sions of  the"^  Comptroller  of  the  Treasury  and  of  the  courts,  is  pub- 
lished for  the  information  of  the  service  in  general. 

[2194536  B— A.  G.  O.] 
By  order  of  the  Secretary  of  War  : 

W.  W.  WOTHERSPOON, 

Majoi'  General,  Chief  of  Staff. 
Officlxl  : 
H.  P.  McCAIN, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

CIVILIAN    EMPLOYEES:    Failure    to    pay    debts;    disobedience    of    order 
requiring  specific  payments. 

Upon  complaint  of  his  creditor,  a  civilian  employee  of  the  War 
Department  was  ordered  by  the  department  commander  to  pay  $10 
per  month  on  the  1st  of  each  month  until  he  had  settled  an  indebted- 
ness of  $125.  The  employee,  after  making  one  such  payment,  claimed 
that  he  was  unable  to  pay  $10  per  month,  and  asked  to  be  permitted 
to  pay  $5  per  month.  This  was  refused,  and  he  was  ordered  to  con- 
tinue'the  payments  of  $10  per  month.  Subsequently,  he  was  charged 
with  failing^  to  obey  the  last  order.  The  employee's  answer  was  in 
substance  that  he  was  unable  to  make  the  payments.  His  discharge 
was  thereupon  recommended  for  disobedience  of  the  order. 

Field,  that  the  Secretary  of  War  would  not  be  justified  in  order- 
ing the  employee  discharged  for  disobedience,  without  having  clear 
evidence  that  he  was  able  to  make  the  required  payments  and  will- 
fully neglected  to  do  so ;  that  the  department  does  not  undertake  to 
require  employees  to  discharge  their  debts  by  the  payment  of  any 
special  amount,  but  regards  the  failure  of  an  employee  to  settle  a 
del)t  which  he  is  able  ito  pay  and  the  nonpayment  of  which  Avould 
result  in  complaints  to  the  department  as  detrimental  to  the  service 
and  as  indicating  his  unfitness  therein,  the  same  rule  applying  to 
civilian  employees  as  to  officers  of  the  Army. 

(16-483,  J.  A.  G.,  Sept.  18,  1914.) 

427 


428        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEKAL. 

COUIITS-MAIITIAL :   Suspended  sentence;   pay  during  confinement;   form 
of  sentence. 

The  Army  act  of  April  27,  1914  (Pub.  No.  91.  p.  4),  provided: 

"  That  the  reviewing  authority  may  suspend  the  execution  of  a  sen- 
tence of  dishonorable  discharge  until  the  soldier's  release  from  con- 
finement." 

Tleld^  that  the  usual  form  of  sentence.  "  to  be  dishonorably  dis- 
charged Avith  forfeiture  of  all  pay  and  allowances,"  would  limit  the 
forfeiture  of  pay  to  the  date  of  the  promulgation  of  the  sentence, 
when  it  would  be  assumed  that  the  sentence  of  dishonorable  discharge 
should  take  effect,  and  that  where  such  a  sentence  Vx'ith  confinement 
was  imposed,  a  suspension  of  the  sentence  as  to  the  dishonorable  dis- 
charge would  leave  the  soldier  in  receipt  of  pay  during  confinement. 
Advised.,  that  the  sentence  of  forfeiture  of  pay  should  be  in  the  fol- 
lowing form : 

"  To  forfeit  all  pay  and  allowances  due  or  to  become  due  while 
undergoing  confinement  in  pursuance  of  this  sentence." 

(72-214,"' J.  A.  G.,  Sept.  11,  1914.) 


COURTS-MARTIAL:  Summary  courts;  constitution  of. 

A  soldier  Avas  tried  and  convicted  by  the  recruiting  officer  acting 
as  a  summary  court-martial  in  a  district  in  which  another  recruiting 
officer  was  on  dutv  in  charge  of  an  auxiliary  or  branch  recruiting 
station.  The  act  of  March  2,  1913  (37  Stat..  722),  provided  that 
the  commanding  officer  of  a  garrison,  fort,  camp,  or  other  place 
where  troops  are  on  duty  might  appoint  a  summary  court-martial  for 
his  command,  and  further: 

"  That  when  but  oiie  officer  is  present  with  a  command,  he  shall  be 
the  summary  court-martial  of  that  command,  and  shall  hear  and 
determine  cases  brought  before  him." 

Held,  that  the  branch  recruiting  office  being  in  the  same  post 
or  command  as  the  principal  office,  there  was  more  than  one  officer 
present  with  the  command,  and  that  the  law  by  clear  implication 
forbade  the  commanding  officer  to  appoint  himself  as  a  summary 
court  or  to  act  as  such  when  there  was  another  officer  with  his 
command.  Held  therefore,  that  the  court  was  illegally  constituted 
and  its  sentence  null  and  void. 

(30-730,  J.  A.  G.,  Sept.  24,  1914.) 


DAMAGES:  Mistake  in  transmitting  telegram;  limiting  liability  of  tele- 
graph, company. 

A  Government  telegram  delivered  to  a  telegraph  company  for 
transmission  read : 

"  The  Secretary  of  AVar  finds  it  necessary  to  retain  you  here  on 
account  of  prospective  important  duties." 

In  transmitting  the  same  the  word  "  retain "  was  changed  to 
"  return,"  in  consequence  of  which  the  officer  to  whom  it  was  directed 
traveled  from  the  place  where  he  was  located  to  Washington,  D.  C, 
and  return,  for  the  purpose  of  reporting  in  pursuance  of  said  sup- 
posed order.     By  a  stipulation  printed  on  the  back  of  the  blanks 


DIGEST    OF    OPINIONS   OF    THE   JUDGE   ADVOCATE    GENEEAL.       429 

used  by  the  telegraph  company  its  liability  in  case  of  error  in  trans- 
mission was  limited  to  a  certain  amount,  unless  the  message  was 
repeated.  The  message  in  (juestion  was  not  written  upon  such  a 
blank.  The  telegraph  company  had  assented  to  the  rates  fixed  by 
the  Postmaster  General  in  pursuance  of  section  5266,  Revised  Stat- 
utes, to  be  charged  for  (xovernment  telegrams  over  lines  of  com- 
panies recei\  ing  benefits  fi-om  the  public  domain,  which  rates  were 
fixed  without  reference  to  any  special  contract  limiting  the  liability 
of  the  transmitting  companies. 

lleld^  that  the  telegraph  company  was  liable  in  failing  to  correctly 
transmit  the  telegram  (;57  Cyc,  1670),  and  that  the  expense  of  the 
officer's  travel,  being  a  proximate  result  of  the  error  in  the  trans- 
mission of  the  message,  should  be  charged  against  the  company  in 
the  settlement  of  its  accounts. 

(22-050,  J.  A.  G.,  Sept.  11,  1914.) 


DETACHED    SERVICE:    Status    while    traveling,    on    leave,    or    awaiting 
orders. 

A  colonel  of  the  Army  serving  with  his  regiment  was  about  to 
be  retired  from  active  service  on  account  of  age.  He  had  not  served 
two  years  out  of  the  last  preceding  six  years  with  his  appropriate 
command,  and  so  was  not  eligible  for  detached  service  under  the 
law  of  April  27,  1914  (Pub.  No.  91,  p.  7),  which  provided  that  an 
officer  of  his  grade  who  had  not  been  actually  present  for  duty  for 
at  least  two  years  out  of  the  last  preceding  six  years  with  a  command 
appropriate  "to  his  grade  should  not  be  detached  nor  permitted  to 
remain  detached  from  such  command  "  for  duty  of  any  kind."  except 
as  otherwise  specifically  provided,  under  a  penalty  of  forfeitiire  of 
the  pay  of  the  superior  officer  by  whose  order  or  permission  said 
requirement  was  violated. 

Ileld^  that  if  said  officer  should  be  ordered  to  his  home  to  await 
his  retirement,  or  ordered  to  his  home  and  then  giA^en  leave  of 
absence  until  the  date  of  his  retirement,  he  would  not  be  detached 
"  for  duty  of  any  kind,"  within  the  meaning  of  said  law,  Avhile  travel- 
ing in  obedience  to  said  orders,  while  on  leave,  or  while  awaiting 
his  retirement. 

(6-124,  J.  A.  G.,  Sept.  8,  1914.) 


GUARDIAN    AND    WARD:    Appointment;    consenting    to    enlistment    of 
minor. 

Questions  were  submitted  for  opinion  as  to  whether  a  minor 
over  18  years  of  age  whose  parents  resided  permanently  in  a  foreign 
country  might  have  a  guardian  appointed  in  this  country,  and 
whether  the  consent  necessary  for  the  purpose  of  accepting  such 
minor  for  enlistment  as  a  soldier  would  be  legal  if  signed  by  such  a 
guardian. 

Held^  that  the  appointment  of  a  gmirdian  under  the  circumstances 
mentioned  was  a  matter  that  must  be  determined  by  the  court  hav- 
ing jurisdiction  upon  taking  the  proper  procedure,  and  that  it  would 
be  competent  for  a  guardian  so  appointed  to  sign  the  consent  neces- 


430        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

sary  for  the  acceptance  of  his  ward  for  enlistment  as  a  soldier,  such 
action  being  within  the  usually  recognized  powers  of  a  guardian  over 
his  Avard. 

(34-070.1,  J.  A.  G.,  Sept.  24,  1914.) 


MILITARY    RESERVATIONS:    Violation    of    regulations;    authority    to 
niake. 

An  affidavit  in  the  nature  of  a  complaint  or  information  charged 
an  individual  with  having  violated  the  regulations  promulgated  by 
the  Secretary  of  War  for  the  government  of  the  Gettysburg  Na- 
tional Park  by  driving  an  automobile  therein  at  a  rate  of  speed  in 
excess  of  12  niiles  an  hour.  The  act  of  May  15,  1909  (29  Stat.,  121), 
provided  that  national  military  parks  should  be  open  only  under 
such  regulations  as  the  Secretary  of  War  might  prescribe,  and  sec- 
tion 6  of  the  act  of  February  11,  1895  (28  Stat.,  651),  made  it  the 
duty  of  the  Secretary  of  War  to  establish  and  enforce  regulations 
for  the  custody,  preservation,  and  care  of  monuments  in  the  Gettys- 
burg National  Military  Park.  Section  45  of  the  Criminal  Code  of  the 
United  States  prescribed  a  punishment  for  anyone  who  "  shall  go 
upon  any  military  reservation,  army  post,  fort,  or  arsenal,  for  any 
purpose  prohibited  by  law  or  military  regulation  made  in  pursuance 
of  law." 

Held,  that  the  statutes  authorizing  the  Secretary  of  War  to  make 
regulations  for  the  government  of  the  national  military  parks  were 
not  a  delegation  of  legislative  authority  {United  States  v.  Grlmmid^ 
220  U.  S.,  506),  and  recommended  that  the  papers  be  referred  to  the 
Attorney  General  for  his  action. 

(80-430.1,  J.  A.  G.,  Sept.  29,  1914.) 


PRISONERS:  Under  suspended  sentence  of  dishonorable  discharge. 

General  Order  No.  56,  W.  D.  1913,  provided  that  only  general  pris- 
oners should  be  enrolled  in  disciplinary  companies.  Certain  pris- 
oners had  received  sentences  including  dishonorable  discharge,  but 
which  discharges  had  been  suspended  in  pursuance  of  law. 

Held  and  advised — 

(1)  That  were  it  not  for  the  suspensions  of  the  sentences  of  dis- 
honorable discharge,  said  prisoners  would  clearly  be  general  prison- 
ers, and  it  Avas  suggested  that  they  be  carried  as  "  General  prisoners 
under  suspended  sentence." 

(2)  That  if  a  soldier's  enlistment  should  expire  during  his  confine- 
ment, report  should  be  made  of  the  soldier's  character  and  conduct, 
with  recommendation  as  to  the  discharge  to  be  given  him,  in  time  to 
vacate  the  order  suspending  the  dishonorable  discharge  or  to  remit 
said  discharge  and  the  remainder  of  the  term  of  confinement  and  re- 
store him  to  duty,  before  the  expiration  of  such  enlistment;  but  that 
he  should  be  carried  on  the  rolls  of  his  organization  until  discharged 
or  transferred,  although  there  would  be  no  objection  to  mustering 
this  class  of  prisoners  on  one  roll. 

(3)  That  this  class  of  prisoners  should  be  credited  Avith  good- 
conduct  time  during  confinement  the  same  as  general  prisoners. 

(30-482,  J.  A.  G.,  Sept.  3,  1914.) 


DIGEST    OF    OPINIONS    OF    THE    JUDGE   ADVOCATE    GENERAL.       431 

PRIVATE   PROPERTY:    Of   retired   soldier   who   died   in   Army   hospital; 
disposition  of;  Articles  of  War. 

A  retired  hospital  steward,  having  been  tal<;en  .seriously  ill  in  a 
hotel  in  San  Diego,  Cal.,  was  removed  to  the  post  hospital  at  Fort 
Eosecrans,  Cal.,  in  a  comatose  condition,  where  he  died  the  next  day 
without  regaining  consciousness.  Apparently  he  left  no  will  and  had 
no  relatives.  The  commanding  officer,  holding  that  the  personal 
property  of  the  soldier  should  be  disposed  of  as  required  by  the  127th 
Article  of  War  and  Army  Regulation  163  of  1913,  declined  to  deliver 
it  to  the  county  public  administrator,  who  had  been  appointed  admin- 
istrator to  take  over  the  estate  and  administer  thereon  under  the 
direction  of  the  probate  court. 

Held,  that  the  action  of  the  commanding  officer  and  post  surgeon 
in  securing  the  eifects  of  the  deceased  soldier  and  in  forwarding  the 
inventory  to  The  Adjutant  General  of  the  Army,  was  correct:  that 
the  administrator  appointed  by  the  court  w^as  a  legal  representative 
within  the  purview  of  the  127th  Article  of  War;  and  that  the  prop- 
erty should  be  taken  outside  the  reservation  and  there  turned  over 
to  the  administrator,  so  as  to  bring  it  within  the  jurisdiction  of  the 
state.    Dio-.  Op.  J.  A.  G.,  1912,  p.  939  (g). 

(6-155,  J.  A.  G.,  Sept.  18,  1914.) 


PUNISHMENT:  Additional  to  sentence;  conduct  regulations. 

B}^  a  conduct-grade  classification  in  force  at  Fort  Grant,  Canal 
Zone,  the  enlisted  men  were  divided  into  three  classes,  A,  B,  and  C. 
Class  A  men  were  furnished  permanent  passes  and  allowed  to  be 
absent  from  the  post,  except  when  detailed  for  duty,  from  report 
until  reveille;  class  B  men  Avere  permitted  to  leave  the  post  when  not 
on  duty  by  obtaining  each  time  a  regularly  signed  pass;  and  class  C 
men,  which  included  all  who  were  undergoing  company  punishment 
or  who  had  been  recently  tried,  were  restricted  to  the  limits  of  the 
post.  A  private  soldier  was  tried  by  court-martial  and  sentenced  only 
to  forfeiture  of  $10  of  his  pay  per  month  for  three  months.  In  the 
operation  of  said  regulations  he  Avas  to  be  confined  to  the  limits  of  the 
post  until  the  termination  of  the  forfeiture. 

Ileld^  that  the  restriction  of  the  soldier  to  the  post  as  the  result  of 
his  conviction  by  court-martial  when  his  sentence  involved  forfeiture 
of  pay  only,  was  not  authorized,  as  such  restriction  thereby  increased 
the  duly  adjudged  punishment  in  violation  of  a  well-settled  rule  of 
military  law ;  and  that  so  much  of  the  method  of  classifying  men 
according  to  conduct  at  said  fort  as  resulted  in  confining  them  to  the 
post  as  a  consequence  of  conviction  by  court-martial,  in  addition  to  a 
prescribed  sentence,  was  contrary  to  military  law  and  should  be  dis- 
continued. 

(30-750,  J.  A.  G.,  Sept.  14,  1914.) 


SUPPJ-iIES:  Purchase  of;  contractor's  request  for  relief  from  contract  on 
account  of  increased  prices  due  to  European  war. 

A  bidder  asked  to  be  relieved  from  awards  made  to  him  for  the 
supply  of  1,300,000  pounds  of  oats  under  his  bid  of  July  26,  1914,  on 
the  ground  that  after  the  acceptance  thereof  by  the  Government  the 


432        DIGEST    OF   OPIXIONS   OF    THE    JUEKJE   ADVOCATE   GENEEAL. 

unexpected  advance  in  the  price  of  oats  was  so  great,  due  to  the 
European  war,  that  to  furnish  them  at  the  price  proposed  would 
amount  to  his  financial  ruin.  His  bid  was  secured  by  an  absolute 
guaranty  binding  the  bidder,  upon  notice  of  acceptance  of  his  bid,  to 
make  deliveries  in  accordance  with  the  terms  of  the  proposal  and 
acceptance,  or,  if  so  required  by  the  United  States,  to  duly  enter  into  a 
contract  and  furnish  bond  for  the  deliveries. 

Held,  that  i\\^  Secretary  of  War  had  no  power  to  grant  the  request, 
and  that  Congress  alone  could  give  the  desired  relief. 

(76-600,  J.  A.  G.,  Sept.  21,  1914.) 


DECISIONS  OF  THE  COMPTEOLLEU  OF  THE  TUEASTJRY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

ABSENCE:    Without    authority;    pay    of    civilian    clerk,    Quartermaster 
Corps. 

A  clerk  in  the  Quartermaster  Department  of  the  Army  employed 
in  the  Philippines  was  granted  30  days  annual  leave  in  accordance 
with  the  provisions  of  the  War  Department  circular  of  July  7,  1904, 
with  permission  to  visit  the  United  States.  Said  circular  provided 
that  such  a  leave  should  be  calculated  from  the  date  the  employee 
arrived  in  the  United  States  from  the  Philippines  to  the  date  when 
he  should  leave  San  Francisco,  Cal.,  in  returning  thereto.  The  clerk 
arrived  in  the  United  States  on  October  15,  1913,  and  his  granted 
leave  expired  November  18  following.  He  was  granted  an  extension 
on  account  of  sickness,  and  this  extension  expired  December  18.  He 
left  San  Francisco  on  his  return  to  the  Philippines  January  4,  1914. 

Held,  that  from  the  date  following  the  expiration  of  his  leave  as 
extended  on  account  of  sickness  until  he  sailed  from  the  United  States 
for  the  Philippines,  he  must  be  regarded  as  absent  without  authority 
and  not  in  a  pay  status,  and  that  payment  to  him  of  his  pay  for  this 
period  was  erroneous. 

(Acting  Comp.  W.  W.  Warwick,  Sept.  4,  1914.) 


CONTRACTS:  Delays  in  completion;  unforeseeable  cause. 

A  contract  provided  for  the  construction  for  the  Government  of 
eight  steel  barges  to  be  delivered  by  a  specified  time,  with  a  provision 
for  the  payment  as  liquidated  damages  of  the  sum  of  $.5  for  each  day 
during  which  each  barge  should  remain  undelivered  after  the  agreed 
date.  A  provision  in  the  contract  extended  the  time  during  which 
delivery  might  be  made  for  a  period  equal  to  the  time  lost  "  on  ac- 
count of  unusual  freshets,  ice.  rainfall,  *  *  *  or  other  unfore- 
seeable cause  of  delay  arising  through  no  fault  of  the  contractor" 
which  might  actually  jjrevent  completion  within  the  agi^eed  time. 
Before  any  construction  work  on  the  barges  had  been  done  a  fire  of 
unknown  origin  almost  completely  destroyed  the  contractor's  plant 
and  thus  delayed  the  work  of  completing  the  barges  for  at  least  40 
davs  from  that  date. 


DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       433 

Ileld^  that  the  fire  was  an  "unforeseeable  cause  of  delay"  within 
the  meaning  of  the  contract  (18  Comp.  Dec,  438),  and  as  the  delay 
thus  caused  exceeded  the  delay  in  the  completion  of  the  contract 
above  the  contract  time,  the  contractor  could  not  properly  be  charged 
with  damages  for  the  delay. 

(Acting  Comp.  AV.  W.  Warwick,  Aug.  31,  1914.) 


DAMAGES:  Unliquidated;  breach  of  contract;  jurisdiction  of  accounting 
ofl5.cer3. 

A  contract  provided  for  the  delivery  of  20,000  pounds  of  frank- 
furters upon  the  IT.  S.  steamer  Celtic  at  the  nav}'^  yard,  Brooklyn, 
N.  Y.,  by  April  20,  1914.  The  vessel  sailed  before  the  date  named 
for  delivery,  and  a  verbal  understanding  was  entered  into  to  th.e 
effect  that  the  contracting  company  should  hold  the  frankfurters  for 
future  delivery,  the  (irovernment  to  assume  any  charges  that  miglit 
accrue  thereon  due  to  its  inability  to  receive  the  goods  on  the  date 
named  in  the  contract.  The  claim  was  disallowed  by  the  auditor  on 
the  ground  that  it  "is  one  for  'unliquidated  damages'  which  the 
accounting  ofSceis  of  the  Treasury  Department  are  not  authorized 
to  settle." 

IleM^  that  the  claim  was  not  for  damages  incident  to  the  breach 
of  the  contract,  but  for  services  rendered  at  the  request  of  the  proper 
Government  officer,  who  was  competent  to  contract  therefor  and  to 
agree  with  the  contractor  after  as  well  as  before  the  performance,  as 
to  the  value  of  the  services  {United  States  v.  Corliss  Steam  Engine 
Co.,  91  IT.  S.,  321 ;  22  Op.  Atty.  Gen.,  437 ;  6  Comp.  Dec,  648 ;  14  id., 
589;  15  id.,  439;  16  id.,  504)  ;  and  that  the  actual  value  of  such  serv- 
ices having  been  agreed  upon  by  the  parties,  the  claim  presented, 
instead  of  being  one  for  unliijuidated  damages,  was  a  liquidated 
claim  for  the  value  of  services  actually  rendered,  which  should  prop- 
erly be  allowed  and  paid. 

_  Held  further,  that  under  section  236,  Revised  Statutes,  which  pro- 
vided that  "  All  claims  and  demands  whatever  by  the  United  States 
or  against  them,  and  all  accounts  whatever  in  which  the  United 
States  are  concerned,  either  as  debtors  or  creditors,  shall  be  settled 
and  adjusted  in  the  Department  of  the  Treasury"  and  the  act  of 
July  31,  1894  (28  Stat.,  205-209),  the  accounting  officers  of  the 
Treasury  Department  have  jurisdiction,  except  where  otherwise  pro- 
vided by  statute,  to  settle  all  claims,  whether  licjuidated  or  unliqui- 
dated; but  they  may  not  be  able  in  some  cases,  because  of  lack  of 
evidence  or  facilities  to  obtain  it,  to  determine  the  justness  of  unliqui- 
dated claims,  in  which  event  such  claims  should  be  disallowed  for 
that  reason  alone,  and  not  on  the  ground  of  lack  of  jurisdiction ;  but 
held  further,  that  the  settlement  of  claims  for  unliquidated  damages 
for  torts  involve  no  jurisdictional  question  in  the  accoimting  officei-s, 
and  that  such  claims  should  be  settled  but  should  not  be'  allowed, 
because  they  involve  no  proper  le^al  charge  against  the  Government. 

(Comp.  Geo.  E.  Downey,  Sept.  9, 1914.) 

93G6S°— 17 2S 


434        DIGEST    OF    OPTNIOXS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

HEAT  AND  LIGHT:  Heimbursenient  of  oificer  occupying'  house  contain- 
ing more  rooms  tliau  his  authorized  allowa,nce  of  quarters. 

A  lieutenant  colonel  of  the  Army,  entitled  to  G  rooms  as  quarters, 
occupied  a  private  house  containing  12  rooms,  2  of  which  were  used 
solely  for  storage  purposes,  were  not  heated,  and  were  not  lighted 
except  on  rare  occasions,  while  the  other  10  rooms  were  heated  and 
lighted  at  the  officer's  expense.  The  building  was  separately  heated 
and  lighted,  but  there  was  no  provision  for  separately  heating  and 
lighting  any  set  of  rooms  corresponding  to  the  officer's  legal  allow- 
ance of  quarters. 

The  act  of  March  2,  190T  (31  Stat.,  116T),  provided  for  furnishing, 
at  the  expense  of  the  Imited  States,  the  heat  and  light  necessary  for 
the  authorized  allowance  of  quarters  for  officers  under  regulations 
to  be  prescribed  by  the  Secretary  of  War.  The  regulations  as 
amended  fixed  a  money  allowance  per  month  for  heating  rooms 
actually  occupied  by  officers  within  the  limit  of  their  allowance 
according  to  zones  of  equal  temperature  instead  of  the  allowance  of 
fuel  in  kind  theretofore  provided  by  regulations,  and  a  similar  pro- 
vision was  made  in  the  regulations  respectino-  the  liohtinff  of  such 
quarters,  the  amount  to  be  paid  to  the  owners  of  the  quarters  or  their 
authorized  agents. 

Held.,  that  the  officer  Wiis  entitled  to  reimbursement  upon  the 
proper  vouchers  for  the  entire  amount  expended  b}^  him  for  heat 
for  the  entire  house  occupied  as  quarters,  not  to  exceed  the  money 
allowance  fixed  by  regulation  for  six  rooms  in  the  zone  in  which  the 
house  was  located,  and  that  the  Quartermaster  Corps  should  pay  the 
compan}^  furnishing  the  illuminating  supply  upon  the  same  basis. 

(Comp.  Geo.  E.  Bowne}^,  Sept.  11,  191-1.) 


PTJK.CHASES:  By  one  bureau  or  department  from  another;  adjustment  of 
appropriations. 

The  Army  appropriation  act  of  April  27,  1011  (Pub.  Xo.  91,  p.  21), 
provided  that — 

"  Hereafter  in  the  settlement  of  transactions  between  appropria- 
tions under  the  Engineer  Department,  or  between  the  Engineer  De- 
partment and  another  office  or  bureau  of  the  War  Department,  or 
of  am'  other  executive  department  of  the  Government,  pa3'ment 
therefor  shall  be  made  by  the  proper  disbursing  officer  of  the  Corps 
of  Engineers  or  of  the  office,  bureau,  or  department  concerned." 

Iield^  that  in  making  payment  for  purchases  for  the  Department 
of  Commerce  from  the  Engineer  Department  of  the  Army,  the 
amount  should  not  be  deposited  to  the  official  credit  of  the  officer 
of  the  Engineer  Department,  but  the  voucher  should  be  prepared  as 
in  the  case  of  an  ordinary  purchase  of  supplies  from  a  dealer  and 
payment  made  by  check  to  the  Chief  of  Engineers;  and  that  checks 
received  in  payment  of  supplies  furnished  or  services  rendered  to  the 
Engineer  Department  should  be  indorsed  to  the  Treasurer  of  the 
United  States  for  deposit  to  the  credit  of  the  proper  appropriation. 

(Comp.  Geo.  E.  Downey,  July  18,  1914.) 


DIGEST    OF    OPINIONS    OF    THE   JUDGE   ADVOCATE'  GENERAL.       435 

REPAIBS:    Damages    to    lighthouse    tender    by    steamer    of    the    Quarter- 
master Corps. 

A  liglithoiise  tender  belonging  to  the  Department  of  Commerce 
was  damaged  b}^  a  steamer  belonging  to  the  Quartermaster  Corps, 
and  a  bill  of  $70  was  rendered  in  favor  of  a  private  concern  for  mak- 
ing the  necessary  repairs.  A  board  of  oiticers  detailed  for  the  pur- 
pose of  examining  into  and  reporting  upon  the  case,  recommended 
that  no  one  be  held  responsible  for  the  damage  inflicted. 

Held,  that  the  repairs  having  been  accomplished,  payment  of  the 
bill  should  be  made  by  the  disbursing  officer  of  the  Department  of 
Commerce  upon  presentation  of  proper  vouchers,  and  that  the 
amount  could  not  be  charged  to  or  paid  from  funds  of  the  Quarter- 
master Corps,  as  such  repairs,  subserving  no  purpose  for  which  the 
funds  were  appropriated,  would  be  without  consideration,  and  as 
there  was  no  appx'opriation  of  the  Quartermaster  Corps  available  for 
such  purpose.    6  Comp.  Dec,  74. 

(Comp.  Geo.  E.  Downe}^,  Sept.  18,  1914;  see  also  decision  of  Sept. 
22.  1914,  in  the  matter  of  replacing  a  beacon  light  destroyed  b}-  a  tug 
of  the  Engineer  Department.) 


TBAVEL    ALLOWANCES:    Charge    for    space    reserved    in    pursuance    of 
transportation  request. 

A  discharged  soldier  by  means  of  a  Government  transportation 
request  secured  passage  on  a  steamer  en  route  to  point  of  enlistment. 
About  two  hours  before  the  steamer  sailed  he  returned  his  ticket  and 
canceled  the  passage.  On  account  of  the  lateness  in  canceling  the 
passage,  it  was  impossible  to  resell  the  berth,  although  the  steamer 
was  booked  full,  and  passengers  had  been  turned  away.  A  rule  of 
the  compaii}"  provided  that — 

"  When  tickets  are  presented  for  redemption  less  than  48  hours  in 
ad\ance  of  sailing  on  crowded  ships,  and  the  accommodations  so 
released  can  not  be  resold,  a  forfeiture  of  50  per  cent  will  be  exacted. 
Such  ticket  may  be  refunded  on  this  basis,  or  will  be  made  valid  for 
later  sailings  upon  additional  payment  of  50  per  cent  of  the  regular 
passage  rate." 

The  reguJar  passage  was  $50,  and  the  company  presented  its  bill 
for  $25  in  accordance  with  said  rule. 

Held,  that  the  amount  claimed  was  not  damages  for  breach  of 
contract,  but  was  a  fixed  charge  for  space  reserved  and  held  for  the 
soldier's  occupancy,  and  was,  in  fact,  for  a  service  rendered,  and  that 
the  amount  should  be  allowed.  Held  further,  that  if  transportation 
should  thereafter  be  furnished  to  the  soldier  the  amount  of  said 
allowance  should  be  deducted  therefrom. 

(Comp.  Geo.  E.  Downey,  Sept.  28,  1914.) 


THAVELING    EXPENSES:    Of    military    attaches    abroad;    payment    of; 
appropriation. 

Appropriation  was  made  by  the  act  of  March  2,  1913  (37  Stat., 
704),  under  the  heading  ''Contingencies,  Military  Information  Sec- 
tion, General  Staff  "  for  "  the  actual  and  necessary  traveling  expenses 
incurred  by  military  attaches  abroad  under  orders  from  the  Secre- 


436        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

tary  of  War,  to  be  expended  under  the  direction  of  the  Secretary  of 

\Var  " 

The  Army  act  of  April  27,  1914  (Pub.  No.  91,  p.  1),  contained  an 

identical  provision.  ,-,-,-,,. 

Held,  that  if  a  military  attache  abroad  imder  orders  from  the 
Secretary  of  War  was  compelled  to  travel  in  pursuance  of  his  duty, 
his  actual  and  necessary  expenses  incident  to  said  travel  were  pay- 
able from  the  appropriation  named ;  and  that  he  was  not  entitled  to 
the  mileage  allowance  of  7  cents  per  mile  for  such  travel  as  provided 
by  the  act  of  June  12,  1906  (34  Stat.,  247),  for  officers  of  the  Army 
traveling  under  orders  without  troops. 

(Comp.  Geo.  E.  Downey,  Sept.  14,  1914,  21  Comp.  Dec,  148.) 


DECISIONS  OE  THE  COUETS. 

(Digests  prepared  in  the  office  of  tlie  Judge  Advocate  General.) 

COInTTRACTS :  Supplemental;  liquidated  damages;  waiver. 

A  contract  provided  for  the  construction  for  the  Government 
within  seven  months  from  the  date  of  its  approval  of  a  pumping 
plant  for  a  dry  dock  at  the  New  York  Navy  Yard.  After  a  portion 
of  the  work  had  been  done,  the  Government  decided  to  connect  said 
dry  dock  with  another  and  to  build  a  single  pumping  plant  for  both. 
A  supplemental  contract  was  entered  into  whereby  the  contractor 
agreed,  for  an  additional  sum,  to  furnish  all  material  and  labor  neces- 
sary for  carrying  out  the  changes  in  and  additions  to  the  plant 
originally  contracted  for,  and  the  time  of  completion  was  extended. 
Thereafter  the  progress  of  the  work  was  delayed,  without  fault  of 
the  contractor,  by  a  controversy  as  to  the  proper  method  of  construct- 
ing a  portion  of  the  work.  After  the  date  fixed  for  the  completion  of 
the  Avork  by  the  supplemental  contract,  two  other  supplemental  con- 
tracts were  entered  into  covering  additional  work  and  changes  found 
necessary  in  the  original  plans,  which  changes  caused  the  con- 
troversy^ In  neither  of  said  supplemental  contracts  was  mention 
made  of  date  of  completion  or  of  former  delays.  No  delays  were 
chargeable  to  the  contractor  until  some  time  after  the  execution  of 
the  Tast  supplemental  contract,  when  delays  occurred  througli  the 
fault  of  a  subcontractor.  After  the  completion  and  acceptance  of 
the  work  settlement  was  made  by  deducting  for  240  days'  delay  at 
the  rate  of  $25  per  day,  stipulated  in  the  original  contract  as  liqui- 
dated damages. 

lield^  that  while  reasonable  liquidated  damages  for  delays  were 
not  to  be  regarded  as  penalties,  yet  where  contracts  provided  for 
pnch  damages,  if  one  party  prevented  the  other  frop  completing 
the  work  in  time,  liquidated  damages  could  not  be  insisted  upon, 
even  though  the  subsequent  delay  was  due  to  the  fault  of  the  c(m- 
tractor,  and  that  where  the  original  Government  contract  provided 
for  li(|uidated  damages  for  delay  beyond  a  specified  date,  and  the 
supplemental  contract  contained  no  fixed  rule  for  the  time  of  com- 
pletion, the  Government  was  limited  in  its  recovery  to  actual  dam- 
ages sustained  by  reason  of  the  cielay. 

{United  States  v.  United  Engineering  &  Contracting  Connjyany^ 
May  8,  1914,  234  U.  S.,  236.) 


DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       437 

LIVING   EXPENSES:    Clerk   of    the    Quartermaster    Corps    on    temporary 
duty;  Army  Regulations. 

A  clerk  of  the  Quartermaster  Corps  regularly  st;itioned  at  Fort 
Riley,  Kans.,  proceeded  under  orders  to  San  Antonio,  Tex.,  for  tem- 
porary duty  with  the  division  to  be  formed  there.  On  the  date  on 
which  he  arrived  at  his  destination  Army  Kegulation  No.  744  of  1910 
was  in  force,  which  provided  that  reimbursement  for  actual  expenses, 
when  traveling  under  orders,  would  be  allowed  to  civilian  clerks  in 
the  employ  of  any  branch  of  the  military  service,  among  them  the 
following: 

"  Cost  of  meals,  and  lodgings  including  baths,  tips,  and  laundry 
work,  not  to  exceed  $4.50  a  day  while  on  duty  at  places  designated  in 
orders  for  the  performance  of  temporary  duty." 

Thereafter  the  Secretary  of  War  approved  a  recommendation  that 
the  reimbursement  mentioned  be  allowed  for  not  more  than  80  days, 
and  that  that  period  be  made  the  limit  of  time  for  which  such  reim- 
bursement should  be  paid  to  those  who  might  thereafter  be  assigned 
to  temporary  duty  at  a  place  other  than  their  permanent  station, 
whatever  the  length  of  time  of  temporary  service.  This  order  Avas 
not  carried  into  the  Army  Eegulations.  but  notice  thereof  was  com- 
municated to  the  clerk  before  the  expiration  of  the  first  30  days  of  his 
assignment  to  duty  at  San  Antonio. 

Jleld^  that  the  allowance,  resting  on  regulation  only,  could  be  with- 
drawn by  a  modification  of  the  regulation ;  that  in  making  or  chang- 
ing Army  Eegiilations  the  President  might  legally  act  through  the 
Secretary  of  War:  that  the  fixing  of  30  days  as  the  lim.it  of  tem- 
porary duty  in  said  case  was  wholly  within  the  discretion  of  said 
Secretary  of  War;  and  that  the  clerk  had  no  legal  claim  for  reim- 
bursement for  living  expenses  incurred  beyond  said  period  of  30 
days. 

{Maxwell  v.  United  States,  Ct.  Cls.  Xo.  31246,  Feb.  9,  1914.) 


NAVIGABLE    WATERS:    Riparian   rights;    paramount    authority   of   the 
United  States;  harbor  Hues. 

A  riparian  owner  in  the  State  of  Virginia,  where  a  fee-simple  title 
runs  to  low-water  mark  in  the  bed  of  a  navigable  river,  had  con- 
structed a  wharf  for  shipping  lumber  out  to  a  harbor  line  established 
by  harbor  commisioners  under  authority  of  a  statute  of  the  State. 
After  the  construction  of  said  vvharf  the  same  harbor  line  was 
adopted  by  the  Secretary  of  War  on  behalf  of  the  United  States, 
under  authority  of  the  act  of  August  11,  1888  (25  Stat.,  425),  as  the 
National  Government's  limit  of  navigable  w^ater.  Thereafter  the 
Secretary  of  War  established  a  new  navigation  or  harbor  line  which 
brought  a  portion  of  said  structures  within  the  navigable  area  of 
the  river,  and  the  owner  was  notified  of  the  change  and  of  the  neces- 
sity for  the  removal  of  such  structures.  Later  the  Secretary  of  War, 
assuming  that  the  ovcner  had  taken  the  risk  of  a  change  in  the  line  of 
navigation  when  it  located  its  structures,  abandoned  condemnation 
proceedings  which  had  theretofore  been  instituted  and  notified  the 
owner  of  his  intention  to  remove  the  portion  of  the  structures  which 
fell  within  the  new  line  of  navigation.  A  suit  for  an  injunction 
against  such  proceedings  was  thereupon  commenced. 


438       DIGEST   OF   OPINIONS   OF   THE    JUDGE   ADVOCATE   GENEEAL. 

Held,,  that  all  State  laws  and  regulations  with  respect  to  navigable 
Avater,  and  all  rights  acquired  under  theui,  were  subject  to  the  para- 
mount right  of  the  United  States  to  appropriate  any  portion  of  the 
submerged  soil  for  the  purposes  of  navigation. 

Held  further^  that  a  harbor  line  established  by  the  Secretary  of 
War,  under  authority  conferred  by  Congress,  was  subject  to  change 
by  the  same  authority,  and  while  a  riparian  owner  might  lawfully 
construct  piers  and  docks  to  the  established  line,  in  doing  so  he  takes 
the  risk  of  such  change  if  required  for  the  improvement  of  naviga- 
tion, which  was  not  a  matter  for  judicial  inquiry,  and  that  the  re- 
moval by  the  Government  of  so  much  of  his  structures  as  extended 
beyond  the  new  line  was  not  a  taking  of  his  property  for  which  he 
was  entitled  to  compensation. 

{Garrison  v.  Greenleaf  Johnson  Lumber  Co..  U.  S.  C.  C.  A..  June 
1,  1911,  ^b  Fed.  Rep.,  576.) 


BULLETIN  50. 

Bulletin  1  WAR  DEPARTMENT, 

No.  50.     J  Washington,  Novemhev  Uj.,  Wllf.. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General  of 
the  Army  for  the  month  of  October,  1914,  and  of  certain  decisions  of 
the  Comptroller  of  the  Treasury,  is  published  for  the  information  of 
the  service  in  general. 
[2227116,  A.  G.  O.] 

By  order  or  the  Secretary  or  War: 

W.  W.  AVOTHERSPOON, 

Ma]or  General^  Ckwf  of  Staff. 
Official  : 

H.  P.  McCAIN, 

The  Adjutant  General. 


OPnTIOHS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

APPBOPKIATIONS :  Special  and  general;  limit  on  expenditures  for  hos- 
pitals. 

In  appropriating  for  "construction  and  repair  of  hospitals  at  mili- 
tary posts  already  established  and  occupied''  in  the  Urgent  Defi- 
ciency Act  of  June  25,  1910  (36  Stat.,  664),  a  proviso  was  added  that 

"  No  more  than  sixty  thousand  dollars  shall  be  expended  in  the 
erection  of  a  hospital  at  the  recruit  depot  at  Angel  Island,  San 
Francisco." 

The  full  amount  authorized  had  been  expended  in  the  erection  of 
such  a  building,  but  it  was  stated  that  the  partitions  of  the  annex 
Avere  incomplete,  with  no  finish  of  any  kind,  and  that  the  main  build- 
ing lacked  painting  and  interior  finish.  An  allotment  was  desired 
from  the  appropriation  for  the  construction  and  repair  of  hospitals 
for  the  purpose  of  completing  said  work. 

Held^  that  the  appropriation  for  the  construction  of  the  hospital 
was  specific  and  was  the  only  one  that  could  be  applied  to  the  object 
named,  and  that  it  would  not  be  legal  to  expend  additional  funds  for 
the  completion  of  the  building  from  anv  other  appropriation. 

(5-OGl,  J.  A.  G.,  Oct.  16,  1914.) 


BIDS:   For  pnrcliase  of  supplies;   alteration  of  proposal  after  opening'  of 


bids 


A  company,  in  response  to  an  advertisement  for  proposals  for  fur- 
nishing stationery,  wrapping  paper,  etc.,  during  the  fiscal  year  1915, 
submitted  a  proposal  which,  as  to  all  but  one  item,  was  qualified  by 


439 


440        DIGEST    OF   OPINIOlSrS   OF    THE    JUDGE   ADVOCATE   GENEEAL. 

tlic  condition  that  the  bids  should  apply  only  to  shipments  made 
Avithin  sixty  days  from  September  11,  1914,  the  reason  given  being 
that  the  European  war  had  so  unsettled  the  paper  market  that  ar- 
rangements could  not  be  made  Avith  paper  mills  for  the  delivery  of 
paper  for  the  entire  year.  Subsequently^  to  the  opening  of  the  bids 
the  company  withdrew  said  condition.  The  prices  bid  by  said  com- 
pany were  lower  than  those  of  other  competitors, 

IleJd^  that  the  bid  was  not  responsive  to  the  advertisement,  which 
called  for  the  furnishing  of  such  supplies  as  might  be  ordered  from 
time  to  time  during  the  fiscal  J^ear,  and  that  the  condition  named  in 
the  bid  could  not  be  regarded  as  a  slight  failure  to  conform  to  the 
terms  of  the  advertisement,  which,  under  paragraph  546,  Army 
Regulations.  1913,  need  not  necessarily  lead  to  the  rejection  of  a 
bid,  and  that  the  bid  could  not  properly  be  accepted.  Held  further^ 
that  if  the  other  bids  were  found  to  be  unreasonable,  taking  into 
consideration  the  bid  in  question,  such  other  bids  might  be  rejected 
for  that  reason,  and  recourse  had  to  an  open  market  purchase,  the 
requirements  of  the  law  as  to  advertising  having  been  satisfied.  Dig. 
Op.  J.  A.  G.  1912,  311  H. 

(76-260,  J.  A.  G.,  Oct.  23,  1914.) 


COIvTTilACTOIlS :   Defaulting;  failnre  to  pay  laborers  and  material  men; 
withholding  payment  by  the  United  States. 

A  contractor  for  the  construction  of  certain  roads,  walks,  and  a 
storage  tank  at  Fort  Sill,  Okla.,  failed  to  make  settlement  with  ma- 
terial men  for  material  furnished  in  connection  with  the  execution 
of  the  work,  and  the  surety  on  his  bond  given  for  the  protection  of 
laborers  and  material  men,  pursuant  to  tlie  Act  of  August  13,  1894 
(28  Stat.,  278),  as  amended  by  the  Act  of  February  24,  1905  (33 
Stat.,  811),  requested  that  some  arrangement  be  made  wdth  respect 
to  the  unpaid  balance  under  the  contract  for  his  protection  as 
against  his  liability  to  laborers  and  material  men. 

Held.,  that  while  the  Government  was  under  no  strict  legal  obliga- 
tion to  defer  payments  to  a  contractor  after  they  had  become  due, 
in  the  interest  of  laborers  and  material  men  who  were  protected  by 
the  contractor's  bond,  yet  it  was  under  an  equitable  obligation  to  see 
that  such  laborers  and  material  men  were  paid  {Ilenningsen  v. 
United  States  Fidelity  &  Guaranty  Company,  208  U.  S.,  404),  and 
that  in  recognition  of  such  obligation  it  should  withhold  payments 
to  the  contractor  until  the  parties  interested  are  given  a  reasonable 
opportunity,  in  due  course  of  procedure,  to  secure  the  appointment 
of  a  receiver  or  trustee  for  receiving  the  moneys  due. 

(76-742,  J.  A.  G.,  Sept.  23  and  Oct.  17,  1914.) 


BESEBTICN:  Forfeiture  of  pay  and  allowances  accrued  under  a  prior  en- 
listment; rations  accou.nt.  >  ^ 

A  soldier  was  discharged  with  an  amount  standing  due  to  him 
on  his  ration  account  while  in  hospital.  He  immediately  reenlisted, 
5;nd  deserted  without  having  received  the  amount  due. 

Held,  that  while  a  soldier  deserting  the  service  forfeits  all  pay 
and  allowances  due  at  the  date  of  desertion  bv  reason  of  the  viola- 


DIGEST    OF    OPIXIOXS   OF    THE    JUDGE   ADVOCATE   GENERAL.       441 

tion  of  his  enlistment  contract,  the  rule  does  not  extend  to  amounts 
due  under  an  enlistment  prior  to  that  from  which  he  deserted,  which 
enlistment  had  been  closed  by  an  honorable  discharge,  and  that  the 
amount  due  the  soldier  from  his  previous  enlistment  was  not  for- 
feited by  the  desertion. 

(72-532.3,  J.  A.  G.,  Oct.  8,  1814.) 


EVIDENCE :  Compelling  a  person,  to  give  evidence  against  himself. 

It  was  proposed  to  order  an  officer  to  a  certain  place  for  identifi- 
cation by  civilian  witnesses  in  relation  to  charges  which  were  pend- 
ing against  said  officer. 

Held^  that  such  an  order  would  not  be  in  violation  of  the  officer's 
privelege  not  to  be  required  to  give  evidence  against  himself,  as  it 
calls  for  no  testimonial  communications  from  him.  {Holt  v.  United 
States,  218  U.  S.,  245.) 

Held  further,  that  the  absence  of  such  officer  from  his  command 
in  obedience  to  the  order  would  not  be  considered  as  such  a  detach- 
ment from  his  organization  as  would  bring  into  operation  the  pen- 
alty clause  of  the  provisions  in  the  Act  of  August  24,  1912  (37  Stat., 
571),  with  relation  to  the  forfeiture  of  the  pay  of  the  superior  officer 
by  whose  order  or  permission  an  officer  should  be  detached,  in  viola- 
tion of  said  act. 

(6-124,  J.  A.  G.,  Oct.  22,  1914.) 


EXHIBITIONS:  Exhibiting  Government  horses  at  horse  shows;  attending 
by  organiza,tion. 

A  request  was  made  that  the  War  Department  exhibit  certain 
cavalry  and  artillery  horses  at  the  annual  show  of  the  Northwest 
Live  Stock  Association,  to  be  held  at  Lewiston,  Idaho,  in  December, 
1914.  The  Army  Appropriation  Act  of  April  27,  1914  (Pub.  91, 
p.  15),  in  appropriating  for  horses  for  the  Army,  contains  the  i^ro- 
viso: 

"  That  hereafter  no  part  of  this  or  any  other  appropriation  shall 
be  expended  for  defraying  expenses  of  officers,  enlisted  men,  or 
horsas  in  attending  or  taking  part  in  horse  shows  or  horse  races; 
but  nothing  in  this  proviso  shall  be  held  to  apply  to  the  officers, 
enlisted  men,  and  horses  of  any  troop,  battery,  or  company  which 
shall,  by  order  or  permission  of  the  Secretary  of  War,  and  within  the 
limits  of  the  United  States,  attend  any  horse  show  or  any  State, 
county,  or  municipal  fair,  celebration,  or  exhibition." 

Held,  that  horses  belonging  to  organizations  could  be  sent  to  such 
exhibitions  at  Government  expense  onl}'^  when  the  organization  to 
which  they  belonged  was  ordered  or  permitted  to  attend,  and  that 
the  request  in  its  limited  form  could  not  be  complied  with.  Opin. 
J.  A.  G.  (94-231,  June  2,  1914.) 

(91-231,  J.  A.G,,  Oct.  19,  1914.) 


EXPOSITION:   Expenses   of   officers   and   enlisted  men   with  their  mounts 
attending  a  mounted  competition. 

It  was  proposed  to  select  three  teams,  one  from  each  of  as  many 
different  Army  posts,  composed  of  six  officers  and  twenty-four  en- 


442        DIGEST    OF    OPIXIONS    OF    THE    JUDGE   ADVOCATE    GEIS^ERAL. 

listed  men  each,  with  their  mounts,  for  participation  in  a  mounted 
competition  at  the  Panama-Pacific  International  Exposition,  and 
the  question  arose  as  to  whether  the  proposed  action  ^Yould  be  in 
violation  of  the  proviso  contained  in  the  Army  Appropriation  Act 
of  April  27,  191-i  (Pub.  No.  91,  p.  15),  forbidding  the  expenditure 
of  appropriations  to  defraj^  the  expenses  of  officers  or  enlisted  men 
or  horses  "  in  attending  or  taking  part  in  horse  shows  or  horse  races." 
The  act  contained  a  saving  clause  excepting  from  the  above  provi- 
sion the  attendance  of  officers,  enlisted  men,  and  horses  of  any  troop, 
battery,  or  company  attending  under  orders  any  horse  show  or  any 
State,'county,  or  municipal  fair  celebration  or  exhibition. 

Held,  that  the  participation  in  the  events  mentioned  of  the  teams 
selected  in  the  manner  proposed  could  not  be  considered  as  an  organi- 
zational participation  within  the  meaning  of  the  saving  clause  of  said 
provision,  but  that  the  exposition  in  question  should  not  be  regarded 
as  a  horse  show  within  the  meaning  of  the  proviso,  and  for  that  rea- 
vson  there  would  be  no  legal  objection  to  authorizing  the  participa- 
tion of  the  three  teams  as  proposed  in  such  competitive  exhibitions,  it 
being  understood  that  the  mounts  referred  to  v^■ere  the  authorized 
mounts  of  the  officers. 

(94-231,  J.  A.  G.,  Oct.  28,  1911.) 


FUIfEBAL    EXPENSES:    Bispcsition    of   remains   of   Army    nurses    dying 
in  the  service. 

The  Sundry  Civil  Act  of  August  1,  1914  (Pub.  Xo.  ir5l,  p.  25),  ap- 
propriates, under  the  head  of  "  Disposition  of  remains  of  officers, 
soldiers,  civilian  employees,  and  so  forth,"  for  the  expenses  of  inter- 
ment of  the  remains  of  officers  and  enlisted  men  of  the  Arni}^  on  the 
active  list  and  of  the  remains  of  civilian  employees  of  the  Army  in 
the  emplo}^  of  the  War  Department  who  had  died  abroad  or  while  on 
dutv  in  the  field  or  at  any  of  the  military  posts  within  the  limits  of 
the  United  States. 

Held^  that  the  Armj-  Nurse  Corps  having,  by  Section  19  of  the  Act 
of  February  2,  19v01  (31  Stat.,  753),  been  made  a  part  of  the  Army, 
nurses  came  within  the  provisions  of  the  Sundry  Civil  Act  for  the 
disposition  of  the  remains  of  officers,  soldiers,  and  civilian  employees 
in  the  military  service,  and  that  the  remains  of  Army  nurses  who 
died  in  the  service  might  be  disposed  of  'as  in  said  Act  provided. 
Opin.  J.  A.  G.,  November  18,  1901,  C.  11616. 

(6-227.2,  J.  A.  G.,  Oct.  8,  1914.) 


HEAT   A.TTD   LIGHT:    Furnisliing'   officer's   8,llowance   to   his   family   at   a 
place  other  than  his  station. 

An  officer  on  temporary  duty  on  the  Mexican  border,  with  perma- 
nent station  at  San  Francisco,  Cal.,  desired  to  have  his  fuel  allow- 
ance during  such  temporary  duty  issued  to  his  family,  occupying 
public  quarters  at  Fort  D.  °A.  Russell,  Wyo.,  upon  the  usual  proof 
that  he  had  not  drawn  his  fuel  allowance  at  his  temporary  station. 

Held,  following  the  decision  of  the  Comptroller  of  the  Treasury  in 
the  matter  of  the  paym.ent  for  heat  and  light  furnished  to  the  qiiar- 


DIGEST    OF    OPINIO^TS   OF   THE    JUDGE   ADVOCATE   GENEKAL.       443 

ters  of  officers,  that  fuel  on  account  of  an  officer's  allowance  for  heat- 
ing his  qiiaj'ters  could  not  be  issued  to  his  family  at  a  place  other  than 
his  permanent  or  temporary  station,  and  that  the  proposed  issues 
should  not  be  authorized, 

(72-311,  J.  A.  G.,  Oct.  14,  1914.) 

Note. — A  letter  from  the  Comptroller  to  the  Secretary  of  the 
Treasury,  to  whom  the  above  decision  was  rendered,  advised  the 
Secretary  that  the  operation  of  his  decision  would  be  suspended 
until  December  1,  1914,  in  view  of  the  investigation  being  condiicted 
by  the  War  Department  for  the  purpose  of  determining  the  value  of 
the  allowances  for  light,  such  determination  to  be  followed  by  an 
amendment  of  paragraph  1057,  Army  Eegulations,  1913. 


INSANE  PES;SCNS:  Shipment  and  disposition  of  effects  of  insane  soldiers 
after  discharge. 

An  enlisted  man  who  had  become  insane  was  removed  from  his 
station  at  Fort  St.  ISIichael,  Alaska,  to  the  Letterman  General  Hos- 
pital, San  Francisco,  Cal.,  and  thence  to  the  Government  Hospital 
for  tiie  Insane,  Washington,  D,  C,  at  wiiich  place  he  was  discharged 
from  the  Arm}',  but  still  remained  an  inmate  of  said  institution. 
His  household  goods  were  retained  at  his  fonner  station  the  soldier 
having  been  unable  to  give  any  instructions  in  regard  thereto. 

Held,,  that  the  law  did  not  authorize  the  shipment  of  any  of  the 
soldier's  effects  at  Government  expense  after  discharge,  except  such 
personal  baggage  as  might  be  transported  as  his  usual  allowance  on 
being  returned  to  the  place  of  enlistment  on  discharge,  and  that  no 
authority  existed  for  transporting  the  soldier's  household  effects 
from  his  former  station  to  San  Francisco,  there  to  be  retained  in 
storage  until  he  should  be  able  to  give  direction  as  to  their  disposi- 
tion. Held  further,  that,  in  view  of  the  fact  that  if  such  property 
were  left  in  storage  indefinitely  it  would  be  subject  to  loss  or  deterio- 
ration, and  in  the  absence  of  a  duly  appointed  guardian,  the  Gov- 
ernment might  make  such  disposition  thereof,  without  public  ex- 
pense, as  might  seem  best  for  the  interests  of  the  soldier. 
.     (44-000,  J.  A.  G.,  Oct.  1,  1914.) 


MILITIA:  Eligibility  for  service  in  the  organized;  pensions  for  physical 
disability. 

Section  1  of  the  Act  of  January  21,  1903  (32  Stat.,  775),  provided 
that: 

"  The  militia  shall  consist  of  every  able-bodied  male  citizen  of  the 
respective  States,  Territories,  and  the  District  of  Columbia,  and 
every  able-bodied  male  of  foreign  birth  who  l^as  declared  his  inten- 
tion to  become  a  citizen,  who  is  more  than  eighteen  and  less  than 
forty-five  years  of  age.     *     *     *." 

Held,  tliat  Congress  not  having  defined  the  term  "  able-bodied  " 
and  not  having  fixed  any  standard  of  physical  qualifications  for  entry 
into  the  organized  militia  other  than  is  found  in  said  expression,  the 
determination  of  the  state  of  fitness  for  membership  in  such  militia 
rested  with  the  recruiting  officers  of  the  States,  acting  under  State 


444        DIGEST    OF    OPINIONS    OF    TKE    JUDGE    ADVOCATE    GENERAL. 

laws.  Held  further^  that  the  receipt  of  a  pension  for  physical  dis- 
ability incurred  in  the  military  service  of  the  United  States  did  not 
constitute  a  legal  disability  for  membership  in  the  organized  militia, 
but 'that  the  Secretary  of  War  might  announce  the  allowance  of  such 
a  pension  as  a  disqualification  for  the  receipt  of  pay,  etc.,  from  appro- 
priations authorized  by  Section  1C61,  Revised  Statutes,  for  the 
militia. 

(58-230,  J.  A.  G.,  Oct.  14,  1914.) 


EEPAIE-S:  Of  property  belonging'  to  officers  and  enlisted  men;  use  of  pri- 
vate property  by  tbe  United  States. 

A  request  for  an  allotment  of  appropriation  to  install  a  hot  water 
bath  apparatus  for  the  command  at  Texas  City,  Tex.,  was  disap- 
proved by  the  Secretary  of  War,  and  the  officers  and  enlisted  men 
installed  such  fixtures  at  their  own  expense.  A  request  was  then 
made  for  authority  to  expend  $000  for  the  repair  of  such  fixtures 
and  additional  funds  for  new  installations. 

Ileld^  that  while,  as  a  general  rule,  repairs  to  private  property 
used  by  the  Government  could  not  be  made  at  Government  expense 
unless  the  contract  of  rental  provided  for  such  repairs  as  a  part  of 
the  consideration,  the  end  desired  in  the  present  case  might  be  ac- 
complished by  an  agreement  with  the  owners  for  the  bailment  of  the 
property  to  the  United  States  for  a  suitable  period  of  time  in  con- 
sideration of  its  repair. 

(5-003,  J.  A.  G.,  Oct.  21,  1914.) 


SAlSS:  Disposition  of  proceeds  of  sale  of  manure  from  ambulance  company; 
company  fund. 

The  proceeds  from  the  private  sale  of  manure  from  an  ambu.lance 
company  at  Galveston,  Tex.,  amounted  to  from  $25  to  $30  per  month. 
It  was  claimed  that  the  proceeds  accruing  from  the  condemnation 
and  public  sale  of  the  manure  would  not  compensate  for  the  incon- 
venience, and  it  was  desired  to  know  whether  the  same  might  be 
sold  at  private  sale  and  the  proceeds  credited  to  the  company  fund. 

Held^  that  Section  3G18,  Revised  Statutes,  required  that  the  pro- 
ceeds of  the  sale  of  old  material,  condemned  stores  and  supplies,  or 
public  property  of  any  kind,  regardless  of  the  method  of  sale,  should 
be  deposited  and  covered  into  the  Treasury  as  miscellaneous  receipts 
on  account  of  proceeds  of  Government  property  (15  Ops.  Atty.  Gen.-, 
322)  ;  and  that  there  was  no  authority  for  crediting  the  amount  re- 
ceived from  the  sale  of  manure  from  the  ambulance  company  to  the 
companv  fund. 

(80-130,  J.  A.  G.,  Oct.  7,  1914.) 


TBAVEL  ALLOWANCES:   Excess   of   cost   of   transportation   by   a  longer 
route. 

A  soldier  who  had  enlisted  at  Jefferson  Barracks,  Mo.,  was  dis- 
charged at  Brownsville,  Tex.,  and  elected  to  take  transportation  to 
Baldwin,  Miss.,  a  distance  not  exceeding  that  from  the  place  of  dis- 
charge to  place  of  his  enlistment.     He  was  furnished  a  transportation 


DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENEEAL.       445 

request  for  transportation  to  Buklvvin,  Miss.,  by  way  of  Mobile,  Ala., 
at  a  cost  of  $8.32  above  the  cost  of  such  transportation  from  Browns- 
ville direct  to  Baldwin. 

Held,  that  the  additional  expense  was  unauthorized,  and  that  the 
officer  issuing  the  request  could  not  be  released  from  his  responsibility 
by  the  War  Department  but  that  it  would  be  necessary  for  him  to 
seek  such  relief  from  Congi'ess. 

(94-300,  J.  A.  G.,  Oct.  IG,  1914.) 


TEAVEOL  EXPENSES:  Of  officers  of  the  Army  abroad;  military  attaches 
and  military  observers. 

An  officer  of  the  Army  was  assigned  to  special  duty  at  London, 
England,  under  the  direction  of  the  United  States  Ambassador,  in 
connection  with  the  relief  of  stranded  Americans  in  England,  when 
he  was  ordered  by  the  Assistant  Secretary  of  War  througii  the  United 
States  Ambassador  at  Paris,  France,  to  act  as  militar}^  observer.  In 
pursuance  of  orders,  he  proceeded  from  London,  England,  to  Paris, 
France,  and  thence  to  jSTeufchatel,  and  returned  to  Paris.  He  pre- 
sented a  bill  for  his  actual  expenses  of  travel,  including  hire  of  an 
automobile  for  a  portion  of  his  travel,  rendered  necessarj^  b}^  the  fact 
that  on  account  of  the  war  trains  did  not  proceed  as  far  as  he  desired 
to  travel. 

Ileld^  that  while  as  a  military  observer,  he  was  attached  to  the 
American  Embassy  at  Paris,  for  purposes  of  official  recognition  he 
could  not  properly  be  regarded  as  a  military  attache  within  the 
meaning  of  the  provision  of  the  Army  Appropriation  Act  of  April 
27,  1914  (Pub.  No.  91,  p.  1),  relative  to  the  payment  of  "  actual  and 
necessary  traveling  expenses  incurred  by  military  attaches  abroad 
under  orders  from  the  Secretary  of  War,"  and  that  he  was  entitled 
only  to  mileage  for  his  travel  and  not  to  actual  expenses.  17  Comp. 
Dec.    204. 

(94-210,  J.  A.  G.,  Oct.  29,  1914.) 


VEHICLES:  Passenger-carrying';  motor  cycles  for  the  Signal  Corps. 

Section  5  of  the  Legislative,  Executive,  and  Judicial  Act  of  July 
16,  1914  (Pub.  Xo.  127,  p.  01) ,  provides  that— 

"  No  appropriation  made  in  this  or  any  other  act  shall  be  available 
for  the  purchase  of  any  motor-propelled  or  horse-drawn  passenger- 
carrying  veliicle  for  the  service  of  any  of  the  Executive  Departments 
or  other  Government  establishments,  or  any  branch  of  the  Govern- 
ment service,  unless  specific  authority  is  given  therefor,     *     '•'     *." 

Opinion  was  desired  as  to  whether  motor  cjxles  purchased  by  the 
Signal  Corps  for  use  by  telegraph  linemen,  repair  men  and  orderlies 
came  Avithin  the  above  statute.  Said  niotor  cycles  were  equipped  for 
carrying  linemen  or  repair  men  and  their  tools  needed  for  the  main- 
tenance of  lines  in  the  field,  and  for  the  use  of  orderlies  in  carrying 
official  messages,  and  were  not  equipped  for  carrying  others  than 
those  engaged  in  the  services  named. 

Held^  that,  considering  the  purposes  for  which  the  motor  cycles 
were  to  be  used,  the  same  should  not  be  regarded  as  passenger- 
carrying  vehicles,  within  the  meaning  of  the  statute  in  question. 

(94-012,  J.  A.  G.,  Oct.  1,  1914.) 


446        DIGEST    OF    OPINIOXS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

VOLITNTARY  SERVICES:   Expense  of  returning  soldiers   absent  without 
leave  to  their  commands. 

A  member  of  the  police  force  at  Houston,  Tex.,  asked  reimburse- 
ment for  expenses  consising  of  car  fare  in  returning  to  their  command 
two  recruits  of  the  Twenty-eighth  Infantry  who  were  apprehended 
by  the  police  of  said  city  while  absent  without  leave.  They  were  not 
charged  with  desertion,  but  were  tried  for  and  convicted  of  absence 
without  leave.  _  , 

Held,  that  there  Vv'as  no  law  providing  for  the  paj'ment  of  expenses 
incurred  by  private  parties  m  returning  soldiers  to  their  proper 
commands,  except  in  the  case  of  deserters,  and,  there  being  no  express 
agreement  to  pay  such  expenses  in  the  present  case,  nor  any  facts 
shown  from  which  such  an  agreement  might  be  implied,  the  service 
must  be  regarded  as  purely  voluntary,  and  the  claim  should  not  be 
paid,  following  the  rule  in  regard  to  tlie  voluntarv  return  of  lost 
property.  5  Comp.  Dec,  37 ;  11  Id.,  741 ;  Op.  J.  A.  G^,  Bui.  43,  W.  D., 
1914,  p.  9. 

(2G-20G.  J.  A.  a,  Oct.  22,  1914.) 


DECISIONS   OF  THE  COMPTPwOLLEU  OF  THE   TEEASUEY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

ABSENCE:  From  active  duty  on  account  of  confinement;  forfeiture  of  pay. 

The  Army  Appropriation  Act  of  April  27, 1914  (Pub.  Xo.  91,  p.  3), 
contains  the  following  provisions : 

'•'•Provided,  That  hereafter  no  officer  or  enlisted  man  in  active 
service  who  shall  be  absent  from  dut}'  on  account  of  disease  resulting 
from  his  own  intemperate  use  of  drugs  or  alcoholic  liquors  or  other 
misconduct  shall  receive  pay  for  the  period  of  such  absence,  the  time 
so  absent  and  the  cause  thereof  to  be  ascertained  under  such  procedure 
and  regulations  as  may  be  prescribed  by  the  Secretary  of  War: 
Provided  furtlier,  That  an  enlistment  shall  not  be  regarded  as  com- 
plete until  the  soldier  shall  have  made  good  any  time  in  excess  of  one 
day  lost  by  unauthorized  absences,  or  on  account  of  disease  resulting 
from  his  own  intemperate  use  of  drugs  or  alcoholic  liquors  or  other 
misconduct,  or  while  in  confinement  awaiting  trial  or  disposition  of 
his  case  if  the  trial  results  in  conviction,  or  while  in  confinement  under 
sentence     *     *     *." 

On  submission  for  a  construction  of  said  statute  by  the  Auditor 
for  the  War  Department, 

Held,  t-iat  in  order  to  work  a  forfeiture  of  pay  under  the  statute 
the  absence  must  be  on  account  of  disease  resulting  from  the  causes 
stated  in  the  first  proviso,  and  that  any  absence  from  active  duty 
with  his  organization  or  at  his  usual  post  of  duty  of  an  officer  or 
enlisted  man  caused  b}^  confinement  while  awaiting  trial,  or  under- 
going punishment  for  any  cause,  would  not  result  in  loss  of  pay  under 
the  terms  of  the  second  proviso.    20  Comp.  Dec,  69. 

(Comp.  Geo.  E.  Downey,  Oct.  10,  1914.) 


HEAT   AND   LIGHT:   Light   allowance   to    officers   of   the   Hevenue   Cutter 
Service;  Army  Reg'ulations. 

Certain  officers  of  the  United  States  Revenue  Cutter  Service  Avho 
by  law  were  entitled  to  the  same  light  allowances  as  officers  of  corre- 


DIGEST    OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       447 

spending  rank  of  the  Arm}',  presented  vouchers  for  the  cost  of  elec- 
tricity used  bv  them  in  lighting  their  quarters,  based  upon  the  arbi- 
trary allowances  prescribed  in  paragraph  1057,  Army  Regulations, 
11)13,  as  amended  by  the  Act  of  August  11,  1914.  Officers  of  the 
Arniy  were  entitled  by  the  Act  of  March  2,  1907  (34  Stats.,  HOT), 
to  ha\'e  provided  them  at  Government  expense  the  light  actually  nec- 
essary for  their  authorized  allowance  of  quarters.  The  money  values 
of  the  allowances  prescribed  by  said  regulation  for  lighting  one  room 
for  one  month  between  the  1st  of  September  and  the  30th  of  April 
at  the  rates  of  85c.  per  thousand  cubic  feet  of  gas  and  10c.  per  IvAVII. 
of  electricity  amounted  to  $1.28  for  gas  and  $1.70  for  electricity,  and 
the  same  rates  applied  proportionately  for  the  number  of  rooms 
actually  occupied. 

Ileld^  that  an  inspection  of  the  said  rates  in  comparison  with  the 
known  cost  of  lighting  quarters  in  AVashington,  D.  C,  disclosed  the 
fact  that  they  were  unreasonable,  and  in  excess  of  the  quantities 
actually  necessary,  and  that  the  regulations  prescribing  such  allow- 
ances were,  therefore,  in  conflict  with  the  law,  and  invalid.  Ueld 
further,  that  the  officers  should  pay  the  bills  and  present  vouchers  or 
claims  for  reimbursement  to  the  extent  of  the  cost  of  the  quantities 
actuall}'  necessarv  to  light  their  auth-orized  quarters  as  occupied. 

(Comp.  Geo.  E.  Downey,  Oct.  10,  1914.) 


TRANSPOBTATION:  Hirs  of  automobiies  for  officer  traveling  in  mileage 
status. 

An  officer  at  -Fort  Sam  Houston,  Tex.,  was  ordered  to  proceed  "to 
Brownsville,  Tex.,  on  duty  in  connection  with  Mexican  Federal  pris- 
oners and  border  patrol  duty ; "  and,  upon  completion  of  this  dut}^, 
to  return  to  Fort  Sam  Houston.  It  was  the  officer's  duty  under  the 
orders  to  inspect  patrol  stations  along  the  Eio  Grande  Eiver  from 
Brownsville  to  Rio  Grande  City.  Upon  the  officer's  arrival  at 
Brownsxille  it  was  found  that  recent  storms  had  so  damaged  the 
roads  along  this  route  that  he  was  obliged  to  hire  and  use  an  auto- 
mobile for  the  trip,  at  an  expense  of  $7.50. 

Held,  that  the  officer's  travel  orders  contemplated  travel  beyond 
Brownsville,  namely,  to  the  patrol  stations  along  the  Rio  Grande 
River  from  Brownsville  to  Rio  Grande  City;  that  being  in  a  mileage 
status  he  was  entitled  under  the  act  of  June  12,  1906  (34  Stat.,  246), 
to  seven  cents  per  mile  traveled  and  no  more;  that  transportation 
which  can  be  furnished  an  officer  on  a  mileage  status  and  charged 
against  his  mileage  account  is  limited  to  transportation  over  estab- 
lished lines  of  common  carriers;  and  that  the  expense  of  hire  of 
extraordinary  means  of  transportation,  such  as  automobiles,  is  not 
authorized  by  law.     (18  Comp.  Dec,  851 :  20  Id.,  485.) 

(Comp.  Geo.  E.  Downey,  Oct.  31,  1914.) 


TBATSrSPOIlTATIOlSr :   Deduction   on   account  of  loss   occurring  in   a  prior 
shipment;  delay  in  ascertaining  the  loss. 

In  settling  an  account  of  a  transportation  company,  the  Auditor 
for  the  War  Department  deducted  $14.13  as  the  cost  of  lOS  pair  of 
stockings,  and  freight  thereon,  being  the  shortage  discovered  in  a 
prior  shipment  for  the  Government  by  the  same  company.     The  bill 


448        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

of  Jading  covering  the  former  shipment  had  been  accomplished  with- 
out discovery  of  the  shortage,  and  a  copy  of  the  receipt  for  the  deliv- 
ery of  the  freight  was  filed  with  the  company.  More  than  two 
months  after  the  bill  of  lading  had  been  thus  accomplished,  and  on 
opening  one  of  the  boxes,  the  shortage  was  discovered,  and  it  w^as 
then  found  that  the  box  bore  evidence  of  having  been  tampered  w^ith. 

Ileld^  that  the  receiving  officer  of  the  Quartermaster's  Department 
should  have  satisfied  himself  at  the  time  that  the  consignment  was 
in  good  order  and  that  he  was  negligent  in  not  doing  so,  and  that 
it  would  not  be  reasonable,  after  the  lapse  of  such  a  length  of  time 
after  the  bill  of  lading  had  been  accomplished,  to  cast  upon  the  rail- 
road company  the  burden  of  showing  that  no  shortage  existed.  The 
amount  deducted  was,  therefore,  allowed. 

(Comp.  Geo.  E.  Downey,  Oct.  17,  1914.) 


TKAVELIISrG-   EXPENSES:    Of   military   attaches   going   to   and   returning 
from  their  posts  of  duty. 

The  Act  of  April  27,  1914  (Pub.  No.  91,  p.  1),  under  the  head  of 
"Contingencies,  Military  Information  Section,  General  Staff  Corps," 
contains  an  appropriation  for  the  fiscal  year  1915  for  "the  actual 
and  necessary  traveling  expenses  incurred  by  military  attaches 
abroad  under  orders  from  the  Secretary  of  War  to  be  expended 
under  the  direction  of  the  Secretary  of  War,     *     *     *." 

Held.,  that  the  Act  created  an  exception  to  the  regular  mileage  law 
for  officers  of  the  Army  of  June  12,  1906  (34  Stat.,  246),  in  favor  of 
military  attaches  abroad  traveling  under  orders  from  the  Secretary 
of  War,  but  that  it  had  no  application  until  the  officer  detailed  as 
military  attache  reached  his  post  of  duty  abroad,  or  after  he  should 
be  relieved  from  dut}''  as  such  attache,  and  that  until  he  reached  his 
post  of  duty  and  after  his  relief  therefrom  his  right  to  travel  allow- 
ances was  governed  bv  the  general  mileage  law. 

(Comp.  Geo.  E.  DoVney,  Oct.  21,  1914.) 


TBAVELING  EXPENSES:  Expense  incurred  after  return  from  journey, 

A  voucher  was  presented  for  reimbursement  of  traveling  expenses 
of  an  officer  of  the  Eevenue  Cutter  Service,  which  included  laundry 
and  pressing  of  clothes  after  his  return  to  his  headquarters,  and 
while  he  was  no  longer  in  a  travel  status.  It  was  stated  that  the 
cause  of  the  expense  arose  while  he  was  traveling  and  that  the  work 
was  actually  postponed  until  his  return  because  it  could  then  be  done 
at  less  cost  than  while  on  the  road. 

Held.,  that  while  there  was  much  room  to  doubt  the  propriety  or 
wisdom,  not  to  say  legality,  of  allowing  bills  for  laundry  and  pressing 
clothes  either  as  transportation  or  subsistence  incident  to  travel  under 
any  circum.stances,  they  had  been  allowed  on  the  assumption  that 
such  expenses  while  in  a  travel  status  were  greater  than  while  the 
party  was  at  home  or  at  his  regular  station,  but  that  in  the  present 
case,  the  work  not  having  been  done  while  the  officer  was  on  the 
road,  but  at  the  regular  station  and  v.diile  he  was  not  in  a  travel 
status,  the  claim  should  be  disallowed.  The  decision  in  18  Comp. 
Dec,  522j  was  disapproved  in  part. 

(Comp.  Geo.  E.  Downey.  Oct.  12,  1914.) 


BULLETIN  52. 

BUI.LETIN  1  WAR  DEPARTMENT, 

No.  52.     J  Washington,  December  H.  lOlJ^. 

The  following  di^jest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  November,  1914,  and  of  certain  deci- 
sions of  the  Comptroller  of  the  Treasury,  is  published  for  the  infor- 
mation of  the  service  in  general. 
[2194536  C— A.  G.  O.] 

By  order  of  the  Secretary  of  War  : 

H.  L.  SCOTT, 
Brigadier  General^  Chief  of  Staff. 
Official  : 

H.  P.  MoCAIN, 

The  Adjutant  General. 


OPimONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

CONTRACTS:  For  replacement  cf  automobile  tires  failing  to  make  guaran- 
teed mileage. 

The  question  arose  as  to  the  legality  of  a  proposed  agreement  with 
the  Goodyear  Tire  &  Rubber  Company  for  the  replacement  of  defec- 
tive automobile  tires  with  new  ones,  the  Government  to  pay,  upon 
the  delivery  of  the  new  tires,  a  sum  equal  to  the  value  of  the  mileage 
obtained  from  the  old  ones,  based  upon  a  six  thousand  mile  guaranty, 
the  original  tires  to  be  returned  to  the  company. 

Held,  that  while  in  a  transaction  involving  the  exchange  of  worn- 
out  Government  property  for  new  articles,  the  consideration  allowed 
for  the  old  property  must  be  covered  into  the  Treasury  as  miscella- 
neous receipts  and  the  full  value  of  the  new  supplies  charged  to  the 
appropriation  therefor,  the  proposed  plan  would  not  come  within 
that  requirement,  the  old  property  not  being  turned  in  on  the  basis 
of  its  value  but  in  pursuance  of  an  agreement  of  warranty;  that  such 
a  plan  appeared  to  be  a  sound  business  arrangement,  which  would 
result  in  economy  to  the  Government,  and  no  legal  objection  could 
be  perceived  to  its  adoption. 

(76-743,  J.  A.  G.,  Nov.  10,  1914.) 


COTJRTS-MAE-TIAL :  Member  of  court  as  witness  for  the  prosecution. 

It  was  provided  by  the  act  of  March  2,  1913  (37  Stat.,  722),  that 
"  The  commanding  officer  of  a  territorial     *     *     *     department 

*  *     *     may   appoint  general  courts-m.artial  whenever  necessary; 

*  *     *     and  no  officer  shall  be  eligible  to  sit  as  a  member  of  such 
court  when  he  is  the  accuser,  or  a  witness  for  the  prosecution." 

93668°— 17 29  449 


450       DIGEST   OF   OPINIONS   OF    THE   JUDGE   ADVOCATE    GENERAL. 

After  the  accused,  an  enlisted  man,  had  been  arraigned  before  a 
general  court-martial  and  his  pleas  made  of  record,  the  judge  advo- 
cate announced  that  a  certain  member  of  the  court  ^Yas  a  witness  for 
the  prosecution.  The  said  member  replied  that  he  was  ''a  witness  to 
the  first  specification  to  which  the  accused  has  plead  guilty."  There 
being  no  objection,  he  remained  a  member  of  the  court,  and  was  not 
called  to  tcstif}^  for  the  prosecution. 

Ueld^  that  as  the  member  neither  testified  nor  qualified  as  a  wit- 
ness against  the  accused,  and  that  since  the  only  knowledge  he  was 
presumed  to  have  had  concerning  the  charges  related  to  a  specification 
which  the  accused  had  removed  from  the  realm  of  judicial  inquiry  by 
his  plea  of  guilty  thereto,  the  said  member  should  not  be  regarded  as 
a  witness  within  the  meaning  of  the  statute. 

(30-435,  J.  A.  G.,  Nov.  19,  1914.) 


COURTS-MAFuTIAL:   Eligibility   of   retired   officer   on   active   staff   duty   to 
serve  as  summary  court-martial. 

A  lieutenant,  IT.  S.  A.,  retired,  assigned  to  active  duty  and  directed 
to  take  charge  of  property  and  funds  pertaining  to  the  Quarter- 
master Corps  at  Fort  Logan  H.  Roots,  Arkansas,  where  there  were 
present,  in  addition  to  himself,  one  officer  of  the  Medical  Reserve 
Corps  and  ten  enlisted  men,  requested  that  the  department  com- 
mander detail  him  as  summary  court-martial.  Section  1255,  Revised 
Statutes,  provides  that  "  officers  retired  from  active  service  shall  be 
withdrawn  from  command."  By  the  act  of  April  23,  1904  (33  Stat., 
264),  the  Secretary  of  War  is  authorized  to  assign  retired  officers 
of  the  Army  with  their  consent  to  "  staff  duties  not  involving  serA'ice 
with  troops."  The  Act  of  March  2,  1913  (3T  Stat.,  722),  provides 
that— 

"  The  commanding  officer  of  a  garrison,  fort,  *  *  *  may  ap- 
point summary  courts-martial  for  his  command;  but  such  summary 
courts-martial  may  in  any  case  be  appointed  by  superior  authority 
when  by  the  latter  deemed  desirable:  Provided.  That  when  but  one 
officer  is  present  with  a  command  he  shall  be  the  summary  court- 
martial  of  that  command  and  shall  hear  and  determine  cases  brought 
before  him." 

Held,  that  under  the  provisions  of  Section  1255,  Revised  Statutes, 
the  retired  lieutenant  could  not  exercise  command;  that  he  could  not 
be  deemed  to  be  present  with  the  command  in  the  sense  of  the  Act  of 
March  2,  1913,  in  view  of  the  fact  that  under  the  provisions  of  the 
Act  of  April  23,  1904,  he  was  not  permitted  to  perform  services  with 
troops,  and  that  therefore  he  was  not  competent  to  act  as  summary 
court-martial,  nor  did  he  have  authority  to  appoint  a  summary 
court-martial.  Held  further^  That  it  was  within  the  power  of  the 
commanding  general  to  appoint  the  medical  reserve  officer  as  a  sum- 
mary court-martial. 

(30-730,  J.  A.  G.,  Nov.  12,  1914.) 


DISCHABGES:  Of  enlisted  men;  when  staff  officers  may  sign. 

The  question  arose  as  to  whether  discharges  of  enlisted  men  of  the 
Hospital  Corps  could  be  signed  by  a  field  officer  of  the  Medical  Corps 
when  one  was  present,  in  view  of  the  requirements  of  the  4th  Article 


DIGEST    OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       451 

of  War  that  "  ISTo  enlisted  man,  duly  sworn,  shall  be  discharged  from 
the  service  without  a  discharge  in  writing,  sigiied  by  a  field  officer  of 
the  regiment  to  which  he  belongs,  or  by  the  commanding  officer, 
when  no  field  officer  is  present;  "  and  of  paragraph  147,  Anny  Regu- 
lations, which  provides  that  "A  soldier  on  his  discharge  from  the 
service,  will  be  given  a  certificate  of  discharge  signed  by  a  field 
officer  of  his  regiment  or  corps,  or  by  the  commanding  officer  when  no 
field  officer  is  present." 

Held,  that  the  term  "regiment"  in  the  4th  Article  of  AVar  should 
be  intei'])reted  "  regiment  or  corps '' ;  that  the  term  "  field  officer," 
according  to  lexicographers,  denotes  rank  only,  and  not  duty,  signi- 
fying "a  colonel,  lieutenant  colonel,  or  major";  and  that  therefore 
Avhenever  an  officer  of  either  of  such  grades  of  any  staff  corps  or 
department  is  present  with  a  command,  discharges  of  enlisted  men 
of  that  corps  or  department  inav  be  signed  by  such  officer. 

(l>8-512,  J.  A.  G.,  Nov.  23,  1914.) 


EABEAS  COHPUS:  Expenses  of  officer  and  serg-eant  in  prodiicing  prisoner 
in  obedience  to  a  v/rit  of  habeas  corpus  issued  by  a  Fedei'al  Court. 

A  lieutenant  at  Fort  II.  G.  Wright,  New  York,  applied  to  the  War 
Department  for  reimbursement  of  expenses  incurred  by  himself  and 
a  sergeant  in  connection  with  the  return  to  a  writ  of  habeas  corpus 
directed  to  the  said  lieutenant  by  a  Federal  District  Court  for  the 
production  of  a  soldier  then  a  garrison  prisoner  whose  mother  sought 
his  discharge  from  the  Army  on  the  ground  of  minority  enlistment. 
The  officers  of  the  court  held  that  there  Avas  no  authority  to  compel 
the  i-elator  to  pay  the  expenses,  nor  for  the  Department  of  Justice 
to  pay  them.  No  regular  mileage  orders  were  issued,  but  the  lieu- 
tenant's commanding  officer  directed  that  he  make  return  to  the  writ, 
and  that  the  prisoner  be  taken  under  guard. 

Ileld^  that  paragraph  999,  Army  Regulations,  directing  that  a  writ 
of  habeas  corpus  issued  by  a  United  States  court  or  judge  shall  be 
promptly  obeyed  is  a  recognition  of  the  duty  of  the  military  to  the 
United  States  Courts:  that  the  lieutenant's  custody  of  the  prisoner 
and  his  duties  as  respondent  in  the  case  resulted  from  the  military 
office  he  held ;  that  his  duty  to  produce  the  prisoner  in  court  was, 
therefore,  a  military  dut}^;  that  it  was  a  military''  necessit}^  to  place 
the  guard  over  the  prisoner  during  the  travel,  and  that  as  regular 
military  orders  might  properly  have  been  issued,  the  lieutenant's 
mileage  should  be  approved  and  reimbursement  made  for  the  neces- 
sary travel  expenses  of  the  sergeant  and  prisoner. 

(20-414.1,  J.  A.  G.,  Nov.  17,  1914.) 


OATHS:  Authority  of  postmasters  to  administer  oaths  in  respect  to  officers* 
returns  of  contracts  to  the  Department  of  the  Interior. 

By  Section  8  of  the  Sundry  Civil  Act  of  August  24,  1912,  it  was 
provided  that — 

"After  June  thirtieth,  nineteen  hundred  and  twelve,  postmasters, 
assistant  postmasters  *  *  *  are  required,  empowered,  and  au- 
thorized, when  requested,  to  administer  oaths,  required  by  law  or 


452     DIGEST  OF  opi:tsrioNS  of  the  judge  advocate  geneeal. 

otherwise,  to  accounts  for  travel  or  other  expenses  against  the  United 
States,  with  like  force  and  effect  as  officers  having  a  seal." 

Ileld^  that  the  authority  of  postmasters  to  administer  oaths  was 
limited  to  accounts  for  travel  or  other  expenses  agaiui^t  the  United 
States,  and  that  they  were  not  authorized  to  administer  the  oath 
required  by  Section  3745,  Revised  Statutes,  relating  to  officers'  returns 
of  contracts  to  the  Department  of  the  Interior. 

(64-219.2,  J.  A.  G.,  Nov.  9,  1914.) 


PRIVATE  DEBTS:   Officer  availing  himself  of  bankruptcy  law  to   escape 
payment  of. 

A  retired  officer  of  the  Army  became  deeply  involved  in  debt.  He 
went  into  bankruptcy  and  claimed  to  have  no  assets.  There  ATere 
evidences  to  show  that  he  failed  to  make  the  proper  effort  to  dis- 
charge his  financial  obligations;  that  although  he  w^as  able  to  wOrk 
he  did  nothing  to  earn  money,  and  was  dependent  upon  his  salary  of 
$116.87  per  month  as  an  officer  of  the  Armiy.  One  of  his  creditors 
expressed  the  view  that  tlie  War  Department  should  not  approve  of 
the  officer's  method  of  disposing  of  his  obligations  through  bank- 
ruptcy proceedings. 

IleJd,  that  the  discharge  of  an  officer  of  the  Army  from  his  finan- 
cial obligations  by  a  court  of  bankruptcy  does  not  release  him  from 
the  moral  obligation  imposed  by  the  military  code  of  honor  to  pay 
his  just  debts;  that  the  military  code  of  honor  forbids  an  officer  to 
release  himself  from  his  just  debts  in  any  other  manner  than  by  pay- 
ment or  adjustment  satisfactory  to  his  creditors,  and  that  an  officer 
is  triable  for  conduct  unbecoming  an  officer  and  a  gentleman  for  not 
paying  such  debts,  providing  his  failure  to  do  so  is  attended  by  cir- 
cumstances indicating  an  intention  to  evade  their  payment. 

(74U224,  J.  A.  G.,  Oct  31,  1914.) 


BETIRED    OEEiCERS:    Assigned   to    active    duty;    authority   to    command 
enlisted  men. 

Section  1255,  Revised  Statutes,  provides  that  officers  retired  from 
active  service  shall  be  withdrawn  from  command,  and  the  act  of 
April  23,  1904  (33  Stat.,  264),  provides  that— 

"  The  Secretary  of  War  may  assign  retired  officers  of  the  Army, 
with  their  consent,  *  *  *  to  staff  duties  not  involving  service 
with  troops." 

Held.,  that  in  view  of  these  statutory  provisions,  a  retired  officer 
assigned  to  duty  as  an  acting  quartermaster  at  a  post  had  no  authority 
to  exercise  command  over  enlisted  men;  that  Paragraph  19,  Army 
Regulations,  which  provides  that — 

"  *  *  *  any  staff'  officer,  by  virtue  of  his  commission,  may  com- 
mand all  enlisted  men  like  other  commissioned  officers  "  could  not  be 
interpreted  as  contravening  the  statutes,  but  that  the  command  of  all 
enlisted  men  referred  to  should  be  understood  to  mean  that  command 
or  authoi'ity  which  officers  exercise  over  enlisted  men  by  virtue  of  their 
commission  when  urgent  necessity  so  requires  for  the  preservation  of 
good  order  and  military  discipline. 

(88-603,  J.  A.  G.,  Nov.  21,  1914.) 


DIGEST    OF    OPINIONS   OF   THE    JUDGE   ADVOCATE    GENEEAL.       453 

SENTENCE:  Of  military  court-martial  imposed  upon  private,  Marine 
Corps;  remission  of  unexecuted  portion  after  command  transferred 
back  to  Navy  Department. 

A  priv^ate  of  tlie  Marine  Corps  had  been  tried  by  a  military  conrt- 
martial  and  given  a  disciplinary  sentence.  Before  the  sentence  had 
been  fidly  executed,  the  command  to  which  the  said  private  belonged 
was  transferred  back  to  the  jurisdiction  of  the  Navy  Department, 
and  it  was  desiretl  that  the  unexecuted  portion  of  his  sentence  be  re- 
mitted. 

Ileld^  that  the  established  rule  of  the  War  Department,  recognized 
in  paragraph  944,  Army.Kegulations,  was  that  the  power  of  an  officer 
to  mitigate  a  sentence  ceased  when  the  person  passed  beyond  the  of- 
ficer's jurisdiction,  and  that  the  principle  applied  a  fortiori  where 
the  person  had  passed  from  the  jurisdiction  of  the  War  Department. 
Advised  that  no  reason  was  perceived  why  the  Secretary  of  the  Navy, 
as  a  representative  of  the  President,  could  not  remit  the  unexecuted 
portion  of  the  sentence. 

(30-840,  J.  A.  G.,  Nov.  9,  1914.) 


TAXATION:    Of    Government    agencies    by    States;    license    and    fees    for 
operation  of  Government  automobile. 

Vouchers  were  presented  for  the  payment  to  the  Commissioner  of 
Motor  Vehicles  for  the  State  of  New  Jersey  of  $3.75  for  registration 
fee  for  a  Government  automobile  used  at  Picatinny  Arsenal,  New 
Jersey,  and  $2.00  for  chauif'eur's  license  for  the  operation  of  said 
automobile.  The  automobile  was  used  by  the  AVar  Department  ex- 
clusively in  the  performance  of  Governmental  functions. 

Ileld^  that  the  vouchers  did  not  represent  a  proper  charge  against 
the  United  States,  as  the  instrumentalities  whereby  the  Federal  Gov- 
ernment performs  its  functions  are  not  subject  to  State  taxation. 
(15  Comp.  Dec,  231.) 

(90-125,  J.  A.  G.,  Nov.  IG,  1914.) 


DECISIOITS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  .Judge  Advocate  General.) 

CONTRACTOHS:  Liability  for  failure  to  deliver  supplies  under  agreement 
represented  by  proposal  and  award.    • 

Prior  to  July  1,  1914,  Miller,  Clagett  &  Company,  in  response  to 
advertisement  by  the  Secretary  of  the  Treasury  under  Act  of  June  17, 
1910  (36  Stat.,  531),  submitted  proposals  for  furnishing  to  the  sev- 
eral Government  establishments  and  departments  in  Washington, 
D.  C,  as  required  during  the  fiscal  year  1915,  various  kinds  of  gro- 
ceries. About  July  1st,  they  were  aw^arded  the  contract  for  many  of 
the  items,  and  a  formal  contract  and  bond  were  sent  them  for  execu- 
tion, which  they  failed  or  refused  to  execute.  During  October,  the 
Government  Hospital  for  the  Insane  ordered  from  them,  and  they 
delivered,  supplies  valued  at  $1,991.89,  according  to  prices  in  their 
accepted  proposal.  Thereafter,  from  the  latter  part  of  October, 
owing  to  the  great  rise  in  the  price  of  groceries,  they  declined  to  fill 


454       DIGEST   OF   OPINIONS  "OF    THE    JUDGE   ADVOCATE    GENERAL. 

most  of  the  orders  sent  them,  necessitating  the  purchase  of  such 
needed  supplies  in  the  open  market.  On  November  24th,  they  were 
dechired  in  default  by  the  Secretary  of  the  Treausry,  and  all  depart- 
ments, etc..  were  instructed  to  purchase  in  the  open  market,  by  com- 
petitive bid,  all  needed  supplies  covered  by  that  Company's  pro- 
posal, and  to  report  the  excess  cost  as  an  indebtedness  of  said  contrac- 
tors. The  disbursinof  clerk  of  the  Government  Hospital  for  the  In- 
sane presented  to  the  Comptroller  vouchers  in  favor  of  Miller,  Clagett 
&  Com.pany  for  $1,991.89  representing  the  purchases  mentioned  above, 
and  inquired  whether  it  should  be  paid. 

Held,  That  the  acceptance  of  Miller,  Clagett  &  Company's  proposal 
and  the  placing,  acceptance  and  filling  of  orders  thereunder  consti- 
tuted, under  the  circumstances,  a  good  and  valid  contract,  binding 
alike  on  them  and  on  the  Government;  that  such  acts  were  sufficient 
to  indicate  that  the  parties  regarded  and  intended  the  proposal  and 
acceptance  to  constitute  a  binding  contract;  that  the  acceptance  by 
Miller,  Clagett  &  Co.,  of  benefits  as  of  a  binding  contract  effectually 
estopped  them  to  deny  that  there  was  a  contract  in  fact;  that  conse- 
quently they  were  liable  in  damages  to  the  extent  of  the  increased  cost 
to  the  Government  of  supplies  covered  by  the  award  to  them,  and  that 
the  voucher  in  question  should  be  withheld  until  the  final  determina- 
tion of  the  contractor's  liability  to  the  Government. 

(Comp.  Geo.  E.  Downey,  Nov.  30,  1914.) 


PAY  AWD  ALLCWANCES :  Of  soldier  dishonorably  discharged;  forfeiture 
of,  during  suspension  of  sentence, 

A  private  in  the  C.  A.  C.  was,  upon  conviction  hy  a  general  court- 
martial,  sentenced^ — 

'"  To  be  dishonorably  discharged  the  service  of  the  United  States, 
forfeiting  all  pay  and  allowances  due  him,  and  to  be  confined  at 
hard  labor  at  such  place  as  the  reviewing  authority  may  direct  for 
six   (G)  months." 

On  July  13,  1914,  the  reviewing  authoritj'  remitted  two  months  of 
the  confinement  and  directed  the  suspension  of  that  portion  of  the 
sentence  imposing  dishonorable  discharge  until  the  soldier's  release 
from  confinement  unless  sooner  ordered  by  competent  authority. 
Thereafter,  b}^  order  of  competent  authority,  the  suspension  of  dis- 
honorable discharge  was  vacated  and  the  soldier  dishonorably  dis- 
charged September  23,  1914.  The  ({uestion  was  presented  whether 
the  soldier  Avas  entitled  to  be  paid  pay  and  allowances  from  July 
14,  the  date  of  approval  of  his  sentence,  to  September  23,  the  date 
of  his  discharge. 

Held^  that  the  forfeiture  of  pay  and  allowances  was  an  incident 
of  the  discharge,  effective  at  the  time  of  discharge  and  not  at  the 
time  of  sentence;  that  its  operation  was  as  if  the  sentence  in  this 
respect  had  been  forfeiture  of  pay  and  allowances  due  and  to  heconne 
due^  and  that  therefore  pay  and  allowances  due  the  soldier  at  the 
time  of  his  dishonorable  discharge  on  Septemb/Cr  23,  1914,  were  not 
pavable  to  the  soldier,  but  were  forfeited  under  the  sentence. 

(Comp.  Geo.  E.  Downey,  Nov.  20,  1914.) 


DIGEST    OF    OPIXIOXS   OF    THE    JUDGE   ADVOCATE    GENERAL.       455 

TRANSPORTATION:    Of    Organized   Militia   in    connection    with   joint    en- 
campment with  Regular  Army;  deductions  under  land  grant  acts. 

The  Court  of  Claims  in  Alahamu  Great  Southern  Railroad  v. 
United  States^  May  18,  1914,  No.  31872,  rendered  judgment  for 
the  claimants  for  $2,447.90,  which  sum  had  been  deducted  by  the 
Auditor  for  the  War  Department  from  claims  of  said  railroad  com- 
pany for  the  transportation  of  members  of  the  organized  militia  of 
Alabama  and  Mississippi  to  and  from  the  joint  camps  of  instruction 
of  the  Ivegular  Army  and  organized  militia  held  at  Chickamauga 
Park,  Ga.,  in  the  summers  of  1908  and  1910,  the  amount  so  deducted 
being  the  amount  authorized  in  accordance  with  the  land  grant  acts 
and  subsequent  laws  and  decisions  thereon  to  be  deducted  for  the 
transportation  of  troops  of  the  United  States.  The  decision  of  the 
Court  of  Claims  in  this  case  was  adverse  to  the  ruling  of  the  Comp- 
troller in  IB  Comp.  Dec,  70,  to  the  effect  that  the  Organized  Militia, 
when  traveling  for  participation  in  joint  encampment  with  the 
Regular  Army  is  to  be  regarded  as  "  troops  "  within  the  meaning  of 
the  Statutes  relating  to  land  grant  deductions  from  regular  rates 
for  transportation  of  troops  over  certain  railroads.  The  Department 
of  Justice  decided  not  to  take  an  appeal  to  the  Supreme  Court  from 
the  judgment  of  the  Court  of  Claims. 

Ileld^  that  while  the  decision  of  the  Court  of  Claims  is  not  neces- 
sarily binding  on  the  Comptroller  in  handling  other  cases  of  the 
same  kind,  yet  his  office  would  acquiesce  and  relieve  claimants  in 
this  class  of  cases  of  the  necessity  of  going  to  the  Court  of  Claims, 
in  view  of  the  conclusion  of  the  Department  of  .Justice  that  the  point 
involved  ought  not  to  be  further  contested  and  the  fact  that  the 
Court  of  Claims  would  doubtless  adhere  to  its  decision  in  other  like 
cases  presented  to  it. 

(Comp.  Geo.  E.  DowJiey,  Nov.  20,  1914.) 


BULLETIN   1. 

(Bulletin  No.  512  is  the  last  of  Uie  series  for  1014.) 

Bulletin  1  WAR  DEPAETMENT,  ^ 

jSTo.  1.    J  Washington,  January  15,  1915. 

The  follo^Ying  digest  of  opinions  of  the  Jndge  Advocate  General 
of  the  Army  for  the  month  of  December,  1914,  and  of  certain  deci- 
sions of  the  Comptroller  of  the  Treasury,  is  published  for  the  infor- 
mation of  the  service  in  general. 
[2246184,  A.  G.  O.] 
By  order  of  the  Secretary  of  War  : 

A.  L.  MILLS, 
BrKjadier  General^  General  t^taff  Corps., 

Acting  Chief  of  istaff. 
Official: 
H.  P.  McCAIN, 

The  Ad'jutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

AHMY  BESEKiVE:  Eligibility  of  soldiers  in  Army  Reserve  to  be  examined 
for  commission. 

By  the  Act  of  July  30,  1892  (27  Stat.,  836),  it  was  provided 
"  that  all  unmarried  soldiers  under  thirty  years  of  age,  who  are 
citizens  of  the  United  States,  are  physically  sound,  who  have  served 
honorably  not  less  than  two  years  in  the  Army,  and  who  have  borne 
a  good  moral  character  before  and  after  enlistment,  may  compete 
for  promotion  under  any  system  authorized  by  this  Act." 

Ileld.  that  this  provision  applied  to  soldiers  in  the  Army  Reserve 
created  by  the  Act  of.  August  24,  1912  (37  Stat.,  590),  as  well  as  to 
soldiers  on  duty  with  their  organizations. 

(64-212.1,  J.  A.  G.,  Dec.  7,  1914.) 


BURIAL  EXPENSES:  Of  indigent  ex-Union  soldiers  dying  in  the  District 
of  Columbia. 

An  ex-Union  soldier  died  in  the  District  of  Columbia  in  April, 
1914,  leaving  no  property.  His  widow  received  $1,933.77  from  a 
policy  of  insurance  on  his  life  made  payable  to  her.  She  paid  the 
expenses  of  his  burial  in  Arlington  National  Cemetery,  amounting 
to  $113,  and  afterwards  made  application  for  reimbursement  of  $45 
from  the  appropriation  for  "Burial  of  Indigent  Soldiers"  (Sundry 
Civil  Act,  approved  June  23,  1913,  38  Stat.,  31),  which  provided 
for  the  payment,  not  to  exceed  $45  in  each  case,  of  the  expenses  for 
456 


DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       457 

the  burial  in  Arlington  National  Cemetery,  or  in  the  cemeteries  of 
the  District  of  Columbia,  of  mdigent  ex-Union  soldiers,  sailors  or 
marines  dying  in  the  District  of  Columbia. 

UeJd^  that  life  insurance  not  joayable  to  the  estate  of  the  deceased 
is  not  a  part  thereof,  and  that  the  question  as  to  whether  the  ex-Union 
soldier  died  indigent  within  the  meaning  of  the  Act  of  June  23,  1913, 
was  not  affected  by  the  receipt  of  his  life  insurance  by  his  widow. 

(5-244.1,  J.  A.  G.,  Dec.  0,  1914.) 


CONTRACTS:  Claim  of  contractor  for  extras  not  agreed  upon  in  writing. 

A  contractor  for  the  constrr.ction  and  repair  of  a  wharf,  after 
completion  of  the  work  and  receipt  of  payment  of  the  contract  price, 
put  in  a  claim  for  replacing  two  new  fender  piles  that  had  been 
damaged  by  a  government  boat  in  making  a  landing  Avhile  the  con- 
struction work  was  in  progress,  and  which  were  found  to  be  de- 
fective. The  quartermaster  in  charge,  upon  consideration  of  the 
terms  of  the  contract  providing  for  the  replacing  of  defective  piles 
and  specifying  that  the  contractor  should  cause  no  inconvenience 
to  the  landing  of  government  boats,  required  that  the  piles  be  re- 
placed as  part  of  the  contract.  While  the  contractor  demurred  that 
it  vras  not  within  the  contract,  he  acquiesced  in  the  requirement  of 
the  quartermaster  and  performed  the  work  without  previous  writ- 
ten orders,  or  agreement  as  to  the  price,  as  provided  by  the  contract 
for  extras. 

TIelcU  that  the  decision  of  the  Court  of  Claims  in  Kilmer  v.  United 
States  (48  Ct.  Cls.,  180) ,  was  controlling,  in  w4iich  decision  the  court 
said  (p.  194)  : 

"^In  the  case  of  Ripley  v.  United  States,  supra,  the  court  held  that 
in  the  absence  of  some  provision  in  the  contract  therefor  a  contractor 
was  not  required  to  appeal.  That  ruling  applies  to  the  present  case, 
and  the  final  question  therefore  is,  vras  the  decision  of  the  officer 
requiring  the  work  to  be  done  without  a  written  agreement  final? 
The  contract  does  not  in  terms  so  provide.  But  it  does  provide  that 
'  no  allowance  shall  be  made  for  extra  work  claimed  to  have  been  clone 
imless  provided  for  beforehand  by  a  written  agreement  specifying 
the  cost  of  the  same.'  Force  and  effect  must  be  given  to  this  provision, 
especially  since  there  is  no  other  provision  of  the  contract  or  sj^ecifi- 
cation  modifying  the  same  or  in  conflict  therewith." 

(76-741,  J.  A.  G.,  Dec.  31, 1914.) 


DETACHED  SERVICE:  Promotion  while  on  staff  duty. 

A  first  lieutenant  of  cavalry  while  on  duty  in  the  field  with  his 
troop  was.  on  October  7,  1914,  detailed  to  perform  additional  duty 
as  an  acting  adjutant  of  troops  of  his  regiment,  and  on  October  24, 
1914,  accepted  a  commission  as  captain  of  cavalry  wdien  he  ceased  to 
do  duty  as  an  officer  of  the  cavalry  troop  but  remained  on  duty  as 
acting  adjutant  in  the  field. 

Held,  that  the  officer  was  after  October  24th,  and  until  he  became 
assigned  to  and  entered  upon  duty  with  a  troop  of  cavalry,  on  de- 
tached service  within  the  meaning  of  the  law  governing  detached 


458        DIGEST    OF    OPINIOX^S    OF    THE    JUDC4E    ADVOCATE    GEXEEAL. 

service,  and  that  he  did  not  come  within  the  special  rule  provided 
by  the  Act  of  April  27,  1914  (Public  No.  91,  p.  8),  making  exceptions 
to  the  requirements  of  the  general  detached  service  legislation. 
(6-124,  J.  A.  G.,  Dec.  17,  1914.) 


DISCHARGES:  Revocation  of  dishonorable  discharge;  insanity. 

The  Superintendent  of  the  Government  Hospital  for  the  Insane 
advised  tlie  War  Department  in  respect  to  two  prisoners  confined  in 
that  institution  that  he  had  come  to  the  conclusion,  after  an  investi- 
gation of  the  history  of  the  cases,  that  both  of  the  men  were  insane 
at  the  time  they  committed  the  offenses  which  led  to  their  dishonorable 
discharge  from  the  Army,  and  he  suggested  the  substitution  in  each 
case  of  an  honorable  discharge  on  certificate  of '  disability  for  the  dis- 
honorable discharge.  The  issue  of  insanity  was  not  raised  at  the 
trial  of  the  men,  and  they  were  regularly  convicted  by  competent 
courts-martial.  The  sentences  were  dulv  approved  by  the  reviewing 
authorities,  and  had  been  fully  executed. 

Ileld^  that  the  soldiers  having  been  legally  tried  and  sentenced 
and  the  sentences  fully  executed,  it  was  beyond  the  power  of  the 
Executive  to  substitute  honorable  discharges  for  the  dishonorable 
ones.     (Dig.  Op.  J.  A.  G.,  1912,  p.  456.) 

(28-620,  J.  A.  G.,  Dec.  18,  1914.) 


ENLISTMENT:  Antedating;  continuous  service  pay. 

By  the  Act  of  Ma,y  11,  1908  (35  Stat.,  109),  authorizing  continuous 
service  pay  for  honoral3ly  discharged  soldiers  who  reenlist  within 
three  months  after  their  discharge,  it  was  provided  that  if  an  hon- 
orably discharged  soldier  reenlists  after  the  expiration  of  three 
months  he  is  to  be  regarded  as  in  his  second  enlistment  where  his 
discharge  was  from  his  first  or  any  subsequent  enlistment.  On  June 
19,  1914,  a  soldier  was  given  an  honorable  discharge  from  his  third 
continuous  enlistment.  On  August  25,  1914,  he  applied  at  Kansas 
City,  Mo.,  for  reenlistment,  was  deemed  qualified  and  was  forwarded 
to  the  recruit  depot  at  Jefferson  Barracks,  Mo.,  on  the  same  date,  but 
was  there  rejected  on  August  27th,  on  account  of  flat  foot.  He 
applied  at  Fort  Leavenworth,  Kans.,  September  24,  1914,  and  was 
accepted  and  sworn  in  on  that  date,  three  months  and  five  days  after 
his  discharge. 

Held,  that  the  soldier's  enlistment  could  not  be  antedated  so  as  to 
give  him  the  benefit  of  fourth  enlistment  pay,  his  case  not  coming 
within  the  provisions  of  Par.  859,  Army  Regulations,  which  au- 
thorize the  antedating  of 'an  enlistment  where  the  delay  was  "  through 
no  fault  of  the  soldier  but  for  the  convenience  of  the  Government." 

(34-042,  J.  A.  G.,  Dec.  12,  1914.) 


HORSE  SHOWS:  Participation  of  troop  of  Cavalry  in  horse  show. 

In  the  Army  Appropriation  Act  of  April  27,  1914  (Pub.  No.  91, 
p.  15),  it  was  provided  that  no  part  of  any  appropriation  shall  be 
expended  for  traveling  expenses  of  oflicers,  enlisted  men  or  horses 


DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       459 

in  attending  or  taking  part  in  horse  shows  or  horse  races  with  the 
(lualification  that — ^"nothing  in  this  proviso  shall  be  held  to  apply 
to  the  oiiicers,  enlisted  men,  and  horses  of  any  troop,  battery,  or 
company  which  shall,  by  order  or  permission  of  the  Secretary  of 
War,  and  within  the  limits  of  the  United  States,  attend  any  horse 
show  or  any  State,  County,  or  Municipal  fair,  celebration,  or 
exhibition." 

Held,  that  the  purpose  of  the  provision  was  to  prohibit  the  use  of 
public  funds  for  paying  expenses  for  participation  in  horse  shows, 
fairs,  etc.,  except  when  the  participation  is  organizational,  and  that 
there  Avas  no  legal  objection  to  permission  being  given  by  the  Sec- 
retary of  War  for  the  order  of  the  band  and  the  entire  troop  of  the 
10th  Cavalry  to  attend  the  New  York  Red  Cross  Horse  Show,  as  re- 
quested. 
,  (94-231,  J.  A.  G.,  Dec.  2,  1911.) 


MILITIA:  Purchase  of  military  supplies. 

A  lieutenant  of  a  State  Militia  desired  to  purchase  from  the  En- 
gineer Corps,  U.  S,  Army,  a  cavalry  sketching  board  for  use  in 
instructing  a  militia  cavalry  troop. 

Held,  that  Section  17  of  the  Act  of  January  21,  1903  (32  Stat., 
778),  was  authority  for  making  the  sale  of  such  articles  for  the  use 
of  militia  troops,  ''  at  the  price  at  which  they  are  listed  for  issue  to 
the  Army,  with  the  cost  of  transportation  added,''  but  that  the  re- 
quest should  be  signed  by  the  Governor  of  the  State  or  by  some  one 
purporting  to  act  bv  his  authority. 

(80-150V  J.  A.  G.",  Dec.  2,  1911.) 


POST  EXCHANGE:  Internal  revenue  tax. 

By  the  Act  of  October  22,  1914,  commonly  known  as  the  war  reve- 
nue act,  it  was  provided  that — 

"  Dealers  in  tobacco  *  *  *  whose  annual  receipts  from  the 
sale  of  tobacco  exceed  $200  shall  each  pay  $4.80  for  each  store,  shop, 
or  other  place  in  which  tobacco  in  any  form  is  sold." 

Held,  that  post  exchanges,  being  Government  agencies,  are  not  re- 
quired to  pay  the  tax.     {Dngan  v.  United  /States,  34  Ct.  Cls.,  458.) 

(10-100,  J.  A.  G.,  Dec.  SOJ  1914.) 

The  Act  of  October  22,  1914.  commonly  known  as  the  war  revenue 
act,  enumerates  in  Schedule  B  various  articles  under  the  heading, 
"  Perfumeries  and  cosmetics  and  other  similar  articles,"  which  are 
required  to  have  affixed  thereto,  on  each  container,  an  adhesive  in- 
ternal revenue  stamp  of  the  prescribed  denomination,  and  further 
provides  that  such  articles  in  the  hands  of  dealers  on  and  after  De- 
cember 1,  1914,  shall  be  subject  to  the  tax,  but  that  "it  shall  be 
deemed  a  compliance  with  this  Act  as  to  such  articles  in  the  hands 
of  dealers  on  and  after  December  as  aforesaid  who  are  not  the  manu- 
facturers thereof  to  affix  the  proper  adhesive  tax  stamp  at  the  time 
the  packet,  box.  bottle,  pot,  or  phial,  or  other  inclosure  with  its 
contents  is  sold  at  retail." 


460        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

Ileld^  that  post  exchanges  are  dealers  witliin  the  meaning  of  this 
provision  of  the  Act  and  are  not  permitted  to  sell  the  articles  subject 
to  the  tax  without  the  prescribed  revenue  stamps  thereon. 

(90-313,  J.  A.  G.,  Dec.  22,  1914.) 


FH,OBATION:  Period  of  duty  under  enlistment. 

An  enlisted  man  was  sentenced  by  court-martial  to  confinement  at 
hard  labor  for  six  months  and  to  forfeiture  of  $10  per  month  of  his 
pay  for  the  same  period.  After  serving  one-half  of  this  sentence,  the 
soldier  was  placed  on  probation  in  accordance  with  Paragraph  943, 
Army  Regulations,  1913,  the  first  sentence  of  which  provides: 

''After  a  garrison  prisoner  has  served  one-half  of  his  sentence  he 
may,  if  his  enlistment  has  not  expired,  submit  to  the  commander  of 
the'  post  where  the  sentence  is  being  executed  a  request  to  be  put  on 
probation  for  the  remainder  of  the  term  of  confinement  adjudged, 
and  upon  the  request  being  granted  the  soldier  will  be  restored  to 
duty  upon  condition  that  if  his  conduct  is  not  good  while  on  proba- 
tion he  will  be  required  to  serve  the  remainder  of  his  sentence." 

Ueld^  that  under  the  regidations,  the  soldier's  conduct  having  been 
good  during  his  probation,  he  was  not  required  to  serve  the  re- 
mainder of  his  sentence,  and  hence  that  the  period  of  his  probation 
was  to  be  considered  as  a  period  of  duty  under  his  term  of  enlistment. 

(80-461,  J.  A.  G.,  Dec.  19,  1914.) 


REGULATIONS:  Operative  on  promulgation. 

A  soldier  was  tried  by  a  court-martial  on  September  21,  1914,  for 
desertion,  found  guilt}^  of  absence  without  leave  only,  and  was  sen- 
tenced to  confinement  "  and  to  stoppage  of  fifty  dollars  of  his  pay, 
the  amount  paid  by  the  Government  for  apprehension  as  a  deserter," 
which  sentence  was,  at  that  time,  authorized  by  Paragraph  128, 
Army  Eegulations.  The  case  was  forwarded  to  the  reviewing  officer 
September  11th.  and  the  sentem?e  was  approved  by  him  September 
30th  and  thereafter  carried  out.  Subsequent  to  the  trial  and  sen- 
tence, and  before  the  reviewing  officer's  approval  of  the  sentence, 
I^aragraph  128,  Army  Eegulations,  was  changed  by  general  orders 
promulgated  to  the  Army  from  tke  War  Department  on  September 
15.  1914.  so  as  to  provide  that  upon  conviction  of  a  soldier  of  absence 
vvithout  leave  only,  "  any  amount  paid  as  a  reward  for  his  arrest  will 
not  be  stopped  against  his  pay."  Orders  promulgating  this  change 
in  the  regidations  had  not  been  received  by  the  rei'iewing  officer  when 
he  approved  the  sentence. 

IlelcU  that  the  promulgation  to  the  Army  on  September  loth  of  the 
order  modifying  Paragraph  128,  Army  Regulations,  operated  imme-, 
diately  to  change  the  regulation,  and  that  as  the  sentence  had  not 
been  approved  by  the  reviewing  officer  the  part  thereof  directing  the 
stoppage  of  $50  on  account  of  the  reward  paid  for  the  soldier's  appre- 
hension became  unauthorized  and  the  soldier  was  entitled  to  have  the 
amount  refunded. 

(26-422,  J.  A.  G.,  Dec.  19,  1914.) 


DIGEST   OF    OPINIONS   OF   THE   JUDGE   ADVOCATE    GENERAL.       461 

STATE  LAWS:  Operation  of,  within  military  reservations. 

A  state  law  was  passed  in  Arizona  providing  that  where  more  than 
five  persons  are  employed  on  any  piece  of  work  in  the  state,  eighty 
per  centum  of  the  workers  so  employed  must  be  citizens  of  the  United 
States. 

Held,  that  this  act  (since  held  unconstitutional  by  the  G.  C.  A.,  9th 
Cir.,  U.  S.)  could  have  no  operation  or  effect  within  a  military  reser- 
vation in  the  state  over  which  exclusive  jurisdiction  had  been  ceded  to 
the  United  States  except  the  riiiht  to  serve  civil  and  criminal  process. 
{Railway  Co.  v.  MeGlinn,  IM^U.  S.,  542.) 

(4-350,  J.  A.  G.,  Dec.  2,  1914.) 


STOPPAGE:  Of  pay  of  soldier  to  reimburse  United  States. 

A  deserter  from  the  U.  S.  Army  enlisted  in  the  Marine  Corps  at 
Boston,  Mass.,  and  was  transferred  to  Norfolk,  Va.  Upon  his  arrival 
at  Norfolk,  he  was  recognized  as  a  deserter  and  turned  over  to  the 
military  authorities.  The  Marine  Corps  incurred  an  expense  of 
$10.10  in  connection  with  the  fraudulent  enlistment  and  request  was 
made  that  this  amount  be  entered  as  a  stoppage  against  the  soldier's 


IleJcl,  that  in  the  absence  of  restrictive  legislation,  the  Secretary  of 
War  has  the  power  to  direct  the  stoppage  of  a  soklier's  pay  to  satisfy 
an  indebtedness  to  the  United  States,  although  the  indebtedness  may 
have  been  incurred  in  another  Department  of  the  Go^'ernment. 

(72-510,  J.  A.  G.,  Dec.  1,  1014.) 


TRAVEL  ALLOWANCES:  Of  officer  for  travel  not  under  competent  orders. 

An  officer  of  the  Army  stationed  at  the  Walter  Reed  General  Hos- 
pital was  included  in  orders  of  September  8,  1914,  appointing  a 
board  to  meet  in  the  City  of  Washington  for  the  purpose  of  making 
investigation  concerning  the  personal  equipment  of  the  Hospital 
Corps.  Instead  of  meeting  in  Washington,  the  board  held  its  meet- 
ings at  Fort  Myer,  Va.,  commencing  September  30th  and  continuing 
at  intervals  until  November  17th.  In  submitting  his  mileage  voucher 
for  payment  for  travel  between  Walter  Reed  General  Hospital  and 
Fort  Myer  to  attend  the  several  meetings,  the  officer  explained  that 
"  the  board  meetings  were  held  at  Fort  Myer,  Virginia,  where 
facilities  were  better  for  considering  matters  before  it." 

Field,  that  the  officer  was  not  entitled  to  mileage  for  that  portion 
of  the  journeys  between  Washington  and  Fort  Myer,  the  travel  not 
having  been  urgent  within  the  exception  in  par.  1285,  Army  Regu- 
lations, which  is  the  only  condition  under  which  mileage  may  be 
allowed  for  travel  performed  without  competent  orders. 

(94-210,  J.  A.  G.,  Dec.  11,  1914.) 


TRAVEL  ALLOWANCES:   Officer  traveling-  with  detachment  as   escort  to 
officer  of  Mexican  army;  "  traveling  with  troops;"  Army  Regulations. 

An  officer  of  the  Army  at  Eagle  Pass,  Tex,,  was  directed  to  proceed 
by  rail  with  a  detachment  of  six  enlisted  men  not  of  his  command,  to 
Naco,  Ariz.,  as  an  escort  to  General  Benjamin  Hill,  Constitutional 


462        DIGEST    OF    OPINIONS    OF    THE    JUDGE   ADVOCATE    GENERAL. 

Army  of  Mexico,  and  party,  and  to  return  upon  completion  of  such 
duty"  to  their  proper  station.  The  enlisted  men  were  furnished  trans- 
portation ancl  subsistence  by  the  Quartermasters  Department,  tho 
officer  paying  his  own  expenses.  By  the  Act  of  June  12,  1906  (34 
Stat.,  345) ,  it  was  proA'ided  that  officers,  when  traveling  under  com- 
petent orders  without  troops  shall  be  paid  mileage ;  and  by  Par.  1281, 
Army  Regulations,  it  was  provided  that  the  term  "traveling  with 
troops  "  would  not  be  regarded  as  covering  cases  of  officers  included 
in  the  movement  by  railroad  of  detachments  of  less  than  10  armed  or 
unarmed  men,  such  as  "escorts  for  Inspectors,  Quartermasters  and 
others." 

Held,  that  the  word  "  others  "  in  the  clause  "  escorts  for  Inspectors, 
Quartermasters  and  others,"  Par.  1281,  Army  Regulations,  should 
not  be  understood  as  referring  only  to  those  in  the  military  service 
of  the  United  States,  and  that  the  officer  was  entitled  to  mileage  as 
having  performed  travel  without  troops  within  the  meaning  of  the 
regulation  and  statute. 

(94-210,  J.  A.  G.,  Dec.  12,  1914.) 


DECISIONS  OF  THE  COMPTROLLEU  OF  THE  TEEASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

COiMTKACTS:  Written  proposal  and  acceptance;  transportation  rates. 

About  the  1st  of  Januarj^,  1912,  the  Quartermaster's  Department 
accepted  the  tenders  of  various  western  railroads  for  carrying  freight 
destined  to  Manila  at  rates  considerably  less  than  those  available  to 
the  general  public.  About  the  1st  of  January,  1914,  the  railroads 
involved  put  into  effect  a  new  export  tariff  providing  rates  to  the 
general  public  on  freight  destined  to  Manila  in  most  cases  under  the 
Go\'ernment  contract  rate.  The  question  was  presented  whether  for 
Government  freight  carried  after  the  new  tariff  went  into  effect  the 
settlement  of  pending  claims  should  be  made  in  accordance  with  the 
contract  rates  or  in  accordance  with  the  new  tariff  rates  where  they 
were  lower  than  the  contract  rate. 

HeJd^  that  in  respect  to  the  reduction  in  rates  the  agreements  were 
not  for  that  reason  invalid,  as  they  wore,  when  made,  advantageous 
to  the  Government;  that  it  is  axiomatic  that  a  contract  valid  when 
made  remains  effective  until  its  expiration  notwithstanding  fluctua- 
tions that  might  happen  afterwards;  that  the  agreements  were  in- 
valid, however,  because  not  made  in  accordance  with  the  provisions 
of  Section  3744,  Revised  Statutes,  but  in  so  far  as  they  had  been  per- 
formed their  invalidity  was  immaterial  {United  States  v.  Andrews 
Co.,  207  U.  S.,  229;  St^  Louis  Hay  &  Grain  Co.  v.  United  States,  191 
IT.  S.,  159),  and  that  as  both  the  War  Department  and  the  carriers 
considered  the  agreements  effective,  the  rates  named  therein  should 
be  applied  to  all  shipments  made  thereunder  and  existing  accounts 
settled  accordingly.  Held  further ,  that  as  the  agreements  were  in- 
valid as  executory  contracts  no  notice  was  necessary  to  terminate 
them. 

(Comp.  Geo.  E.  Downey,  Dec.  1,  1914.) 


DIGEST   OF    OPIXIOISrS   OF   THE   JUDGE   ADVOCATE   GENERAL.       463 

TRANSPOItTATIOlSr:    Discharg'ed   soldier   using'   ti'ansportation   request   as 
part  payment  of  fare  on  through  trip. 

A  soldier  discharged  at  San  Francisco,  Cal.,  and  desiring  trans- 
portation to  Somerset,  Ky.,  was  furnished  a  Government  transporta- 
tion request  for  transportation  from  San  Francisco  to  Granger,  W'yo., 
the  ultimate  point  in  the  direction  of  Somerset,  Ky.,  to  which  he 
w^as  entitled  to  transportation.  The  railroad  company  would  not 
accept  the  request  in  part  payment  for  a  single  through  ticket  to 
Somerset  at  the  regular  through  rate,  but  issued  to  the  soldier  a 
ticket  to  Granger,  Wyo.,  and  another  ticket  thence  to  Somerset,  Ky., 
for  which  the  soldier  w'as  required  to  pay  the  local  rate  of  $40.58. 
The  value  of  the  transportation  from  San  Francisco  to  Granger  was 
$34.40,  and  the  through  rate  from  San  Francisco  to  Somerset  was 
?!53.60.  The  soldier  contended  that  he  should  have  been  allowed 
the  money  value  of  his  transportation  request  toward  the  payment 
of  the  through  rate  of  $53.60  and  required  to  pay  only  the  balance, 
or  $19.20.  In  a  decision  of  August  14,  1914  (21  Comp.  Dec,  76), 
the  Comptroller  held  in  substance  that  in  honoring  transportation 
requests  issued  to  discharged  enlisted  men.  a  transportation  company 
musl  adhere  to  the  stipulations  upon  the  requests  by  issuing  trans- 
'portation  of  the  character  specified  therein  and  between  the  points 
named. 

Held.,  that  the  railroad  company,  in  taking  up  the  transportation 
request  and  issuing  a  ticket  thereon  to  the  destination  called  for, 
did  only  what  it  was  requested  to  do  by  the  Government,  and  that: 
the  Comptroller  had  no  jurisdiction  to  render  an  authoritative  de- 
cision as  to  the  right  of  the  railroad  company  under  the  circum- 
stances to  collect  from  the  soldier  more  than  the  regular  through 
rate. 

(Comp.  Geo.  F.  Downey,  Dec.  8,  1914.) 


BULLETIN  5. 

Bulletin  1  WAR  DEPARTMENT, 

No.  5,     j  Washington,  Fehimary  6, 1915. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  January,  1915,  of  certain  decisions  of 
the  Comptroller  of  the  Treasury,  and  of  an  opinion  of  the  Attorney 
General,  is  published  for  the  information  of  the  service  in  general. 
[2255370,  A.  G.  O.] 
By  order  of  the  Secretary  of  War: 

11.  L.  SCOTT, 
Brigadier  General.^  Chief  of  Staff. 
Official  : 

11.  P.  ]\IcCAIN, 

llie  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ACTING  DENTAL  SURGEONS:  Not  officers  of  the  Army. 

The  question  was  presented  as  to  whether  an  acting  dental  surgeon 
is  an  officer  of  the  Army,  wdthin  the  meaning  of  the  Act  of  March  3, 
1885  (23  Stat.,  350),  authorizing  the  reimbursement  of  officers  ancl 
enlisted  men  for  the  value  of  private  property  lost  or  destroj^ed  in  the 
military  service.  Acting  dental  surgeons  occupy  the  same  official 
status  as  contract  dental  surgeons  (36  Stat.,  1054) ,  and  contract  dental 
surgeons  have  the  same  official  status  as  contract  surgeons  (31  Stat., 
752).  :  .  . 

Held.,  following  previous  rulings  of  this  office  in  respect  to  contract 
surgeons  (Dig.  Op.  J.  A.  G.,  1912,  p.  97),  that  acting  dental  surgeons 
are  not  officers  of  the  Arm3^  within  the  meaning  of  the  Act  of  March 
3,  1885;  that  they  form  no  part  of  the  military  establishment,  but  are 
merely  civilians  under  contract  to  render  personal  service. 

(18-461,  J.  A.  G.,  Jan.  11,  1915.) 


CIVILIANS:  Expenses  for  treatment  of,  in  Government  hospitaL 

A  transport  surgeon  at  San  Francisco,  Cal.,  after  rejecting,  on 
October  1.  1914,  a  temporary  employee  as  physically  unfit  for  the 
transport  service  and  therefore  ineligible  to  sign  the  ship's  articles, 
and  after  the  hitter's  employment  of  about  two  weeks  as  water  tender 
on  the  transport  had  ceased,  gave  him  a  letter,  dated  October  5,  1914, 
to  the  Letterman  General  Hospital,  stating  that  "  bearer  ...  is  an 
employee  of  the  transport  service,  who  desires  treatment  for 
4(>i 


DIGEST    OF    OPINIONS   OF    THE   JUDGE   ADVOCATE    GENEBAL.       465 

hernia  .  .  ."  Subsequently  a  claim  was  presented  to  the  Medical 
Depar'tment  on  behalf  of  the  hospital  fund  for  reimbursement  of 
$10.40  for  the  patient's  subsistence  while  under  treatment  at  the 
hospital  from  October  G  to  31. 

Ileld,  that  the  patient  having  ceased  to  be  an  emploj^ee  of  the  trans- 
port service  before  his  admission  to  the  hospital  and  the  disability 
for  which  he  was  treated  having  antedated  his  service,  there  was  no 
provision  of  law  or  regulation  authorizing  the  pa^'ment  of  the  said 
expenses  from  public  funds.  Held  further^  that  the  hospital  fund 
was  entitled  to  reimbursement  and  that  as  the  transport  surgeon 
seemed  to  be  responsible  for  erroneously  causing  the  patient's  admis- 
sion into  the  hospital  as  an  emploj^ee  of  the  transport  service,  he 
should  be  held  liable  for  the  pavment  of  the  claim. 

(94-120,  J.  A.  G.,  Jan.  12,  191,5.) 


CONTRACTS:  Failure  to  accept  bid  within  stipulated  time  limit;  liability 


cf  guarantors. 


Bids  were  invited  and  opened  July  16,  1914,  for  the  construction 
of  315  refrigerators.  The  bids  were  accompanied  by  guaranties  to 
keep  the  bids  open  for  acceptance  for  sixty  daj's,  and  in  default  of 
the  bidder  to  enter  into  contract  in  event  of  the  acceptance  of  his  bid 
within  the  sixt7/  day  period  the  guarantors  were  bound  to  pay  to  the 
United  States  the  difference  in  cost,  if  any,  in  case  of  purchases  else- 
where. The  award  was  made,  but  not  within  the  sixty-day  period, 
and  subsequently  the  successful  bidder  was  adjudged-a  bankrupt  and 
became  unable  to  carry  out  the  agreement. 

Held.,  that  the  failure  to  accept  the  bid  within  the  sixty-day  period 
absolved  the  guarantors  from  all  liability.  Ileld^  further,  that  there 
Avas  no  legal  objection  either  to ,  readvertising  for  new  bids  or  to 
entering  into  a  contract  with  the  next  lowest  bidder  if  the  latter  were 
willing. 

(76-240,  J.  A.  G.,  Jan.  15,  1915.) 


CONTRACTS:   Liability   of  gviarantors   for   failure   of   successful   bidder   to 
enter  into  and  perform  contract. 

A  bid  for  furnishing  horses,  dated  November  2,  1914,  accompanied 
by  a  guaranty  to  enter  into  a  contract,  as  required,  within  five  days 
fifter  notice  of  acceptance,  Avas  accepted  and  contract  and  bond  were 
sent  to  the  bidder  on  November  20,  1914,  for  execution,  which  he 
failed  or  refused  to  accomplish.  He  proceeded,  however,  to  deliver 
horses  for  inspection,  and  up  to  January  18,  1915,  when  the  time 
limit  for  furnishing  horses  expired,  he  had  produced  about  ninety 
animals,  out  of  which  number  only  nine  were  found  acceptable.  The 
bidder  asked  to  be  relieved  from  his  obligation. 

Held.,  that  the  condition  of  the  guaranty  was  broken  by  the  failure 
of.  the  bidder  to  enter  into  contract,  as  required,  "  within  five  days 
after  said  notice  of  acceptance,"  and  that  his  guarantors  were  bound, 
to  the  extent  of  their  undertaking  under  the  terms  of  the  guaranty, 
to  pay  to  the  United  States  the  difference,  if  any,  in  money  between 

936GS°— 17 30 


466        DIGEST    OF    OPIXIONS    OF    THE    JUDGE    ADVOCATE    GE^STEEAL. 

the  amount  of  the  bidder's  proposal  and  the  cost  to  the  United 


ates  of  the  horses  purchased  elsewhere. 
(76-600,  J.  A.  G.,  Jan.  23,  1915.) 


CONTBACTS:  Failure  of  subject  matter  of  contract  due  to  act  of  God. 

A  contract  for  furnishing  hay  at  a  post  in  Texas  called  for  choice 
prairie  feeding  hay,  the  highest  of  the  locality.  Owing  to  a  severe 
drought,  folloATcd^  by  heavy  rains  and  floods,  the  quality  of  the 
Texas  crop  of  prairie  hay  was  very  poor,  but  the  quartermaster  ac- 
cepted deliveries  of  the  inferior  ha^^  described  as  "  a  poor  grade  of 
prairie  grass,  overcured,  lifeless,"  and  containing  "  little  nutriment," 
paying  Iherefor  the  contract  price,  on  the  ground  that  there  was 
no" better  hay  to  be  had  in  the  open  market. 

Ileld^  that  the  contractor  was  not  entitled  to  substitute  an  inferior 
quality  of  hay  for  the  superior  article  called  for  by  the  contract; 
that  \i  there  was  a  failure  of  the  subject  matter  of  the  contract,  due 
to  an  act  of  God,  he  was  entitled  to  have  the  contract  canceled  with- 
out liability  to  either  party,  and  that  if  conditions  required  the  pur- 
chase of  inferior  hay,  either  because  a  better  quality  could  not  be 
procured  or  because  the  emergency  did  not  permit  of  the  nec&ssary 
delay  to  procure  it,  the  inferior  article  should  have  been  purchased 
at  tlie  market  price.  Held  further^  that  the  opinion  of  this  office  of 
August  31,  1913  (W.  D.  Bui.  No.  29,  1913,  p.  7),  upon  which  the 
quartermaster  relied,  was  misconstrued  by  him. 

(76-700,  J.  A.  G.,  Jan.  9,  1915.) 


COirE.TS-M ARTI AL :  Publication  of  sentence. 

A  general  prisoner  was  received  at  Fort  Leavenworth.  Kans.,  Sep- 
tember 5,  1914,  under  sentence  of  confinement  at  hard  labor  for  six 
months.  A  typewritten  copy  of  the  general  court-martial  order 
publishing  the  prisoner's  sentence,  dated  August  14,  1914,  accom- 
panied the  prisoner,  under  which  order  the  term  of  confinement,  with 
reduction  for  good  conduct  time,  would  expire  January  12,  1915. 
About  two  months  later  a  printed  copy  of  the  general  court-martial 
order,  dated  September  21,  1914,  publishing  the  same  sentence  was 
received  at  the  prison,  under  which  the  prisoner's  sentence  would 
expire  not  earlier  than  February  23,  1915.  The  latter  order  con- 
tained the  printed  notation:  "This  order  supersedes  typewritten 
order  publishing  this  case." 

Held,  that  the  first  order  legally  completed  the  action  of  the  re- 
viewing authority,  and  that  the  subsequent  order  was  null  and  void. 

(30-540,  J.  A.  G.,  Jan.  9,  1915.) 


EXTRADITIOIST:  Transfer  of  enlisted  man  xo  another  State  for  prosecution 
by  civil  authorities. 

Eequest  was  made  that  an  enlisted  man  serving  in  Delaware  be 
transferred  into  the  jurisdiction  of  New  York  with  a  view  to  having 
him  indicted  for  abandoning  his  wufe.  Tleld^  that  there  is  no  pro- 
vision of  law  for  the  transportation,  at  the  expense  of  the  United 


DIGEST    OF    OPIlvriONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       4G7 

States,  to  the  place  where  he  is  wanted  b}'  the  civil  authorities,  of 
a  soldier  charged  with  an  offense,  but  that  a  soldier  is,  in  respect  of 
extradition  process,  in  the  same  status  as  though  he  were  in  civil  life. 
(74-111.3,  J.  A.  G.,  Jan.  26,  1915.) 


HEAT  AND  LIGHT :  xJoncommissioned.  officer  on  temporary  duty  in  tlie 
field  not  entitled  to  fuel  allowance  at  liis  permanent  station. 

A  regimental  noncommissioned  staff  officer,  on  temporary  duty 
with  his  regiment  at  Texas  City,  Tex.,  and  entitled  to  one  room  as 
quarters,  requested  that  his  allowance  of  fuel  be  issued  to  his  family 
at  his  permanent  station.  The  Act  of  March  2,  1907  (34  Stat.,  11G7), 
provides  for  the  allowance  of  heat  and  light  for  the  authorized  allow- 
ance of  quarters  for  officers  and  enlisted  men. 

Ileld^  that  there  is  no  statutory  authority  for  an  enlisted  man  to 
retain  quai'ters  at  his  permanent  station  while  on  temporary  duty  in 
the  field,  similar  to  that  provided  for  officers  by  the  Act  of  February 
27,  1893  (27  Stat.,  480),  and  that,  therefore,  the  noncommissioned 
officer  was  entitled  to  his  fuel  allowance  only  at  his  place  of  service, 
where  only  he  was  entitled  to  quarters. 

(72-411,  J.  A.  G.,  Jan.  14,  1915.) 


HEAT  AND  LIGHT:  Pay  clerks. 

The  question  was  presented  v/hether  a  pay  clerk,  duly  assigned  to 
and  occupying  public  quarters  at  a  military  post,  is  entitled  to  heat 
and  light  at  public  expense  under  the  Act  of  March  2,  1907  (34  Stat., 
IIGT),  which  provides  for  the  furnishing  of  heat  and  light  actually 
necessary  for  the  authorized  allowance  of  quarters  for  officers  and 
enlisted  men. 

Ileld^  that  the  pay  and  allowances  of  pay  clerks  of  the  Army  are  by 
statute  (xVct  of  Mar.  3,  1911,  36  Stat.,  1044;  and  Act  of  June  24,  1910, 
36  Stat.,  606)  made  the  same  as  paymasters'  clerlvs  and  warrant 
officers  of  the  Navy;  that  by  the  Act  of  March  3, 1901  (31  Stat.,  1107), 
and  section  1616,  Eevised  Statutes,  the  latter  are  given  the  same  allow- 
ances of  quarters  as  are  provided  for  a  2d  lieutenant  of  the  Army, 
but  that  no  statutory  provision  is  made  for  furnishing  heat  and  light 
for  their  quarters  at  pubdic  expense. 

(72-310.1,  J.  A.  G.,  Jan.  20,  1915.) 


PRIVATE  BUSINESS:  Officers  engaging  in. 

A  typewriter  company  inquired  whether  it  was  within  the  province 
of  captains,  lieutenants,  sergeants,  etc.,  to  sell  typewriters  to  their 
"  fellow  officers  "  on  commission.  Held.,  that  such  a  practice  would  not 
receive  the  favorable  indorsement  of  the  War  Department. 

(6-127,  J.  A.  G.,  Jan.  18,  1915.) 


QUARTEHS:  Officer  in  command  of  disciplinary  company,  military  prison. 

By  the  Act  of  March  2,  1901  (31  Stat.,  901),  it  is  provided  that  the 
Secretary  of  AVar  may  determine  what  shall  constitute  travel  and 


468   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEEAL. 

duty  Avithout  troops  within  the  meaning  of  the  laws  governing  the 
paj^ment  of  mileage  and  comnmtation  of  quarters  to  officers  of  the 
Army.  Under  authority  of  this  statute,  the  Secretary  of  War  pre- 
scribed Paragraph  1300,  Army  Regulations,  1913,  which  provides, 
inter  alia,  that  officers  on  duty  at  places  where  public  quarters  are  not 
furnished,  "but  where  enlisted  men  are  on  duty  only  as  guards, 
orderlies,  clerks,  and  messengers,"  are  regarded  as  being  on  duty 
without  troops.  ..„rfi^.^-v,^^,-,  ' 

An  officer  was  placed  in  command  of  the  disciplinary  company,  in 
addition  to  other  duties,  at  the  Atlantic  Branch  of  the  United  States 
Military  Prison,  Fort  Jaj%  N.  Y.,  said  company  consisting  of  about 
80  men  sentenced  to  dishonorable  discharge.  In  addition  there  were 
20  enlisted  men  performing  the  duties  of  instructors  and  overseers 
of  the  prisoners. 

Held,  that  none  of  the  prisoners  was  serving  the  United  States 
under  an  enlistment  contract,  but  all  were  serving  confinement  imder 
sentence  and  v\'ere,  therefore,  not  troops;  that  the  20  enlisted  men 
performed  some  guard  dutj^  but  were  mainly  emploj'ed  as  instruc- 
tors and  overseers ;  that  they  were  not  "  on  duty  only  as  guards,"  nor 
employed  as  orderlies,  clerks  or  messengers,  and  that  the  officer  was 
not,  in  the  sense  of  the  regulation,  on  duty  without  troops. 

(72-333,  J.  A.  G.,  Jan.  12,  1915.) 


TRAVEL  ALLOWANCES:  Discharged  soldiers;  transportation  in  kind  fur- 
nished and  not  used. 

An  enlisted  man,  honorably  discharged  at  Fort  McDowell,  Cal., 
from  an  enlistment  effected  in  the  Philippine  Islands,  was,  upon  his 
request,  given  a  Government  transportation  request  for  transporta- 
tion in  kind  from  San  Francisco,  Cal.,  to  Baltimore,  Md.,  in  accord- 
ance with  the  Act  of  August  24,  1912  (37  Stat.,  576),  which  provides 
that  an  honorably  discharged  soldier  shall  be  entitled  to  transporta- 
tion in  kind  and  subsistence  from  the  place  of  his  discharge  to  the 
place  of  his  enlistment,  or  to  such  other  place  within  the  continental 
limits  of  the  United  States  as  he  may  select,  to  which  the  distance  is 
no  greater  than  from  the  place  of  discharge  to  the  place  of  enlistment. 
The  act  further  provides  that  in  lieu  of  such  transportation  and  sub- 
sistence, the  soldier  may  elect  to  receive  two  cents  a  mile  except  for 
sea  travel.  The  soldier  changed  his  mind  and  reenlisted  at  Fort  Mc- 
Dowell, returning  the  transportation  request  to  the  quartermaster. 
He  then  inquired  whether  he  was  not  entitled  to  receive  in  money, 
from  the  Government,  the  amount  that  the  transportation  to  Balti- 
more would  have  cost  the  Government  had  he  used  it. 

Held.,  that  the  soldier  was  only  entitled  to  transportation  in  kind 
because  his  rights  were  based  upon  sea  travel,  and  this  was  so  whether 
he  returned  to  the  Philippines,  the  place  of  his  enlistment,  or  jour- 
neyed in  the  opposite  direction,  and  that  the  law  makes  no  provision 
for  commuting  to  soldiers  the  value  of  transportation  in  kind  where 
they  are  not  entitled  to  the  regular  statutory  two  cents  a  mile  allow- 
ance. __ 

(94-330,  J.  A.  G.r Jan., 23,^"  1915.), 


DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       469 

DECISIOHS  OF  THE  COMPTEOLLEE  OF  THE  TREASURY. 
(Digests  prepared  in  tlie  office  of  the  Judge  Advocate  General.) 

PURCHASE  OF  SUPPLIES:  Requirements  as  to  advertising. 

The  Bureau  of  Mines  purchased  a  gasoline  truck  after  advertis- 
ing and  receiving  five  proposals  for  furnishing  the  truck  in  accord- 
ance with  specifications.  Subsequently,  the  need  for  another  truck 
of  the  same  character  having  arisen,  the  bureau  purchased  a  second 
truck  from  the  same  company  that  furnished  the  first,  at  the  same 
price.  It  was  certified  on  the  voucher  for  payment  that  the  truck 
was  purchased  "  under  informal  agi'eement,  upon  immediate  delivery 
or  performance,"  and  upon  "non-competitive  quotation  without  ad- 
vei'tising,  by  reason  of  impracticability  to  secure  competition,"  there 
being,  it  was  stated,  "  only  one  dealer  from  whom  the  articles  can  be 
obtained." 

Held,  that  the  certificate  was  not  justified  by  the  facts;  that  when 
the  first  truck  was  required  five  separate  proposals  were  obtained 
for  furnishing  it,  which  showed  that  there  was  no  lack  of  competi- 
tion ;  that  it  cannot  be  concluded  by  one  purchasing  for  the  Govern- 
ment that  a  particular  inal'e  of  a  needecl  article  will  be  purchased, 
when  other  makers  can  furnish  substantially  the  same  article,  and 
then  from  such  conclusion  adopt  the  further  one  that  it  is  not  possible 
to  secure  competition ;  that  the  requirements  of  Section  3709,  Revised 
Statutes,  as  to  advertising,  are  mandatory  except  where  immediate 
delivery  is  urgent;  and  also  that  Section  3744,  Revised  Statutes, 
requiring  all  contracts  of  the  War,  Navy  and  Interior  Departments 
to  be  reduced  to  writing  and  signed  at  the  end  thereof,  should  have 
been^complied  with. 

(Comp.  Geo.  E.  Downey,  Jan.  6,  1915.) 


STATE  LAWS:  Inspection  of  horses  belonging  to  the  United  States  at  State 
lines. 

The  Southern  Pacific  Company  put  in  a  claim  for  reimbursement 
of  $G0.40  for  cost  of  inspection  of  horses  belonging  to  the  United 
States  en  route  from  various  points  to  California  and  Arizona.  It 
Avas  contended  that  the  State  laws  required  the  inspections  to  be 
made  before  the  admission  of  the  horses  into  the  States;  that  it  was 
the  duty  of  the  carrier  to  permit  and  pay  for  such  inspection  in  order 
to  facilitate  the  prompt  delivery  of  the  shipment  to  the  consignees, 
and  that  the  law  requiring  such  inspection  was  within  the  police 
povver  of  the  States. 

Fleld^  that  the  police  power  of  a  State  to  safeguard  the  health  and 
property  of  its  inhabitants  does  not  extend  to  the  right  of  interfering 
with  the  instrumentalities  of  the  Federal  Government;  that  the 
requirement  of  the  State  laws  of  evidence  of  the  inspection  of  the 
horses  did  not  make  it  the  carrier's  duty  to  make  or  permit  the  in- 
spection ;  that  the  expenses  were,  therefore,  voluntarily  incurred 
without  benefit  to  the  United  States,  and  that  the  carrier  could  not 
legally  be  reimbursed  from  public  funds. 
(Comp.  Geo.  E.  Downey,  Jan.  14,  1915.) 


470       DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENEKAL. 

OPINION  OE  THE  ATTOENEY  GENERAL. 
(Digest  prepared  in  the  office  of  the  Judge  Advocate  General.) 

CONTKACTOSS:   Belief  from  performance  of  contract  because  of  increased 
cost  of  contract  supplies  due  to  European  war. 

A  firm  wliicli  entered  into  a  contract  before  the  outbreak  of  the 
European  war  to  furnish  supplies  to  the  Treasury  Department  peti- 
tioned the  Secretary  of  the  Treasury  for  relief  from  further  per- 
formance of  their  contract  because  of  the  increased  price  of  contract 
supplies  due  to  the  war.  Held,  that  the  contractors  were  obligated 
to  perform  the  contract,  if  valid,  if  performance  were  physically 
possible ;  that  the  existing  hardship  gave  them  no  right  to  avoid  the 
obligation ;  that  no  executive  officer  has  power  to  suspend,  rescind  or 
relieve  from  the  obligation  of  a  valid  contract  when  either  would  be 
detriraental  to  the  United  States,  however  burdensome  performance 
might  be — especially  where  the  added  burden  is  not  caused  by  the 
United  States,  and  that  in  such  cases  relief  can  only  be  granted  by 
Congress,  which  body  alone  has  power  to  recognize  a  moral  claim  for 
relief. 

(30  Ops.  Atty.  Gen.,  301.) 


BULLETIN  9. 

BtTLLETiN  1  WAE  DEPARTMENT, 

No.  9.      J  Wasiiingtox,  March  13,  1915. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  February,  1015,  and  of  certain  deci- 
sions of  the  Comptroller  of  the  Treasury,  is  published  for  the  informa- 
tion of  the  service  in  general. 
[2255370  A— A.  G.  O.] 
By  order  of  the  Secretary  of  War  : 

TASKER  H.  BLISS, 
Brigadier  General,  Acting  Chief  of  Staff. 
Official  : 
H.  P.  McCAIN, 

The  Adjutant  General. 


OPINIONS  or  THE  JUDGE  ADVOCATE  GENERAL. 

CONTRACTS:  Change  in  statutory  requirements  as  to  form. 

In  a  decision  of  December  31,  1911:  (21  Comp.  Dec,  425),  the 
Comptroller  of  the  Treasury  held  that  under  Section  3741,  Revised 
Statutes,  contracts  generally  for  the  purchase  of  supplies  or  procure- 
ment of  services  for  the  Army  were  required  to  be  reduced  to  writing 
and  signed  by  the  contracting  parties  at  the  end  thereof,  except  as 
to  emergency  purchases,  or  where  the  amount  for  supplies  or  services 
did  not  exceed  $500  and  immediate  performance  was  contemplated. 
The  effect  of  this  decision  is  modified  by  the  following  provision  of 
the  Army  Appropriation  Act,  approved  March  4.  1915  (Pub.  No. 
292)  : 

"  That  hereafter  whenever  contracts  which  are  not  to  be  performed 
within  sixty  days  are  made  on  behalf  of  the  Government  by  the  Quar- 
termaster General,  or  by  officers  of  the  Quartermaster  Corps  author- 
ized to  make  them,  and  are  in  excess  of  $500  in  amount,  such  con- 
tracts shall  be  reduced  to  writing  and  signed  by  the  contracting 
parties.  In  all  other  cases  contracts  shall  be  entered  into  under 
such  regulations  as  may  be  prescribed  by  the  Quartermaster  General.'' 

The  effect  of  this  legislation  is  to  require  formal  written  contracts 
in  the  Quartermaster's  Department  only  where  the  agreement  is  not 
to  be  performed  wdthin  60  days  and  the  amount  involved  exceeds 
$500.  Formal  written  contracts  will  not  be  necessary  {a)  where  the 
amount  involved  does  not  exceed  $500,  or  (6)  where,  regardless  of 
the  amount,  performance  is  to  be  completed  within  60  days*  unless 
required  by  regulations  prescribed  by  the  Quartermaster  General. 

471 


472       DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE    GENEKAL. 

COUIITS-MARTIAL:  Officers  of  Judge  Advocate  General's  Department  not 
available  as  counsel. 

A  lieutenant  applied  for  the  detail  ef  an  officer  on  duty  in  the 
office  of  the  Judge  Advocate  General  of  the  Army  to  appear  as 
counsel  in  his  defense  at  a  general  court-martial  trial. 

Held^  that  the  Judge  Advocate  General's  Office  is  on  record  as 
being  opposed  to  officers  of  the  Judge  Advocate  General's  Depart- 
ment appearing  as  counsel  for  the  defense  in  any  case,  vhich  prin- 
ciple should  be  adhered  to  and  should  apply  to  assistants  in  the  office 
of  the  Judge  Advocate  General. 

(30-423.37  J.  A.  G.,  Feb.  2,  1915.) 


DESEHTION:  Resignation  of  officer  during  Civil  War. 

On  October  1,  1861,  an  officer  of  the  United  States  Army  tendered 
his  resignation  at  San  Francisco.  Cal.,  and  in  November,  1861,  joined 
the  Confederate  Army.  No  record  was  found  of  his  having  been 
granted  any  leave,  nor  of  the  acceptance  of  his  resignation,  but  on 
December  26,  1861,  it  was  announced  in  General  Orders  from  the 
War  Department  that  the  officer  was  dismissed  on  that  date  by  direc- 
tion of  the  President  because  of  his  ha^-ing  tendered  his  resignation 
under  circumstances  showing  disloyalty  to  the  Government. 

Fields  that  in  vicv.-  of  Section  2  of  the  Act  of  August  5,  1861,  pro- 
viding that  an  officer  leaving  the  Army  under  such  circumstances 
"  shall  be  registered  as  a  deserter  and  punished  as  such,"  his  status 
from  the  date  he  tendered  his  resignation  and  quit  the  service  of  the 
United  States  with  intent  to  join  the  Confederate  Army  until  his 
discharge  on  December  26,  1861,  was  that  of  an  officer  absent  in 
desertion. 

(26-<020,  J.  A.  G.,  Feb.  27,  1915.) 


INDIAN  SCOUTS:  Contracts  of  enlistment. 

The  question  was  presented  whether  the  regular  enlistment  con- 
tract should  be  used  for  Indian  Scouts.  Indian  Scouts  are  enlisted 
under  Section  1112.  Kevised  Statutes,  which  authorizes  the  President 
to  enlist  a  force  of  Indian  Scouts  "  who  shall  act  as  scouts  in  the 
Territories  and  Indian  country,"  and  who  "  shall  be  discharged  when 
the  necessity  for  their  service  shall  cease,  or  at  the  discretion  of  the 
department   commander." 

The  Act  of  February  2,  1901  (31  Stat.,  748).  provides  that  the 
Army  "  shall  consist  of  fifteen  regiments  of  cavalry,  a  corps  of  ar- 
tillery, thirty  regiments  of  infantry  *  *  *_  Indian  scouts  as  now 
authorized  hy  law^  and  such  other  officers  and  enlisted  men  as  may 
hereinafter  be  provided  for." 
_  The  Act  of  August  24,  1912  (37  Stat.,  599).  provides  for  all  en- 
llsttnents  of  the  Army^  to  be  made  for  a  t-erm  of  seven  j^eai's  and  sub-- 
ject  to  the  Army  reserve  provisions  of  the  Act. 

Tleld^  that  the  Act  of  August  24,  1912,  makes  no  exception  as  to 
Indian  scouts;  that  they  are  placed  upon  the  same  footing  as  other 
enlisted  men  of  the  Army,  so  far  as  their  enlistment  term  is  con- 
cerned; and  that  therefore  the  regular  enlistment  contract  is  the 


DIGEST   OF    OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       473 

onl}^  propor  conti'act  for  their  enlistmo.nt.  Held  further^  that  under 
the  provisions  of  Section  1112,  Revised  Statutes,  Indian  scouts  may 
be  discharged  "  when  the  necessity  for  their  service  shall  cease,  or 
at  the  discretion  of  the  department  commander,"  since  those  pro- 
visions have  not  been  repealed. 

(G-150.1,  J.  A.  G.,  Feb.  20,  1915.)     . 


LICENSES:   For  the  erection  of  buildings  on  military  reservations. 

The  proprietor  of  a  restaurant  on  a  military  reservation  applied. 
for  insurance  on  the  building  in  Avhich  he  conducted  his  l)usiness,  and 
the  question  was  raised  as  to  who  held  title  to  the  building.  The 
building  was  erected  in  1909  by  a  restaurant  company,  with  the  per- 
mission of  the  post  commander.  The  restaurant  company  having 
proved  unsatisfactory,  the  post  conunander  had  the  value  of  the 
building  appraised  by  a  board  of  officers,  and  it  was  sold  at  the  ap- 
praised valuation.  The  purchaser  subsequently  made  improvements 
and  additions  thereto,  with  the  tacit  approval  of  the  commanding 
officer. 

Ileld^  that  the  question  of  title  to  buildings  erected  upon  military 
reservations  under  licenses  depends  in  each  case  upon  the  intent  of 
the  parties;  that  where  licenses  have  been  reduced  to  writing  the  ques- 
tion of  title  is  not  ordinarily  difficult  to  determine,  the  general  rule 
in  such  cases  being  that  unless  otherwise  provided  therein  the  title 
may  be  assumed  to  be  in  the  licensee ;  that  in  the  case  of  verbal  licenses 
or  permits,  as  in  the  instant  case,  while  the  controlling  principle  is 
likewise  the  intent  of  the  parties,  such  intent  is  apt  to  be  more  diffi- 
cult to  determine,  and  must  be  gathered  from  the  statements  of  the 
parties  and  the  known  circumstances;  that  in  the  instant  case  the  fact 
that  the  company  which  erected  the  building  was  permitted  to  sell 
it  indicated  that  it  was  the  intention  of  the  parties  to  the  license  that 
the  title  should  be  in  the  licensee,  and  hence  the  purchaser  acquired 
the  vendor's  title;  such  license,  however,  being  revocable  and  the 
building  subject  to  removal  at  the  pleasure  of  the  executive  authority. 

(80-252,  J.  A.  G.,  Feb.  2,  1915.) 


LINE  OF  DUTY:  Enlisted  man  injured  while  cleaning  pistol. 

An  enlisted  man  on  duty  was  injured  by  the  discharge  of  a  Gov- 
ernment automatic  pistol  which  he  was  cleaning  prei)aratory  for  in- 
spection. He  had  been  on  patrol  duty  and  returned  about  4.30  p.  m. 
''He  then  looked  after  his  mount,  went  to  mess  and  returned  to  his 
tent  to  clean  his  arms  for  retreat  inspection.  He  was  fully  under  the 
impression  that  he  had  unloaded  his  rifle  and  pistol  and  found  his 
rifle  to  be  unloaded,  which  he  cleaned  first.  He  then  proceeded  to 
clean  his  pistol  and  it  discharged,  injuring  him." 

Held.,  that  while  the  soldier  was  negligent  in  not  assuring  himself 
that  his  pistol  was  not  loaded  before  he  began  cleaning  it,  under  all 
the  circumstances  it  was  not  regarded  that  his  faihire  to  do  so 
amounted  to  culpable  contributory  negligence;  and  that  his  injury 


474       DIGEST    OF    OPINIOXS    OP    THE   JUDGE   ADVOCATE   GENEEAL. 

should  be  regarded  as  having  been  incurred  in  line  of  duty.  Held 
further^  that  the  rule  with  respect  to  contributory  negligence  can  not 
be  applied  in  all  its  strictness  in  determining  the  question  whether  a 
soldier's  injuries  have  been  received  in  line  of  duty,  but  that  injuries 
caused  bv  gross  carelessness  are  not  in  line  of  duty. 
(54-013,  J.  A.  G.,  Feb.  26, 1015.) 


MILITABY  ATTACHES:   Expenses  for  travel  as  military  observer. 

The  military  attache  at  Tokyo,  Japan,  submitted  vouchers  for  mile- 
age for  travel  performed  by  him  as  "  military  observer  "  m  accom- 
panying the  Japanese  Expeditionary  Campaign  against  the  German 
province  of  Kiao-cliau,  that  ofticer  having  been  directed  by  the  War 
Department  to  perform  the  duty  mentioned  upon  his  advice  that  "  the 
Japanese  War  Department  has  authorized  one  military  attache  from 
each  Treaty  country  to  accompany  the  Expeditionary  forces  to  Kiao- 
chau." 

II eld ^  that  the  travel  came  within  the  provision  of  the  current 
Arni}^  Appropriation  Act  (38  Stat.,  315),  "  for  *  *  *  the  actual 
and  necessary  traveling  expenses  incured  by  military  attaches  abroad 
under  orders  from  the  Secretary  of  War";  that  the  officer  was,  there- 
fore, entitled  to  leimbursement  for  his  actual  and  necessary  traveling 
expenses,  and  was  not  authorized  to  receive  mileage. 

(99-270,  J.  A.  G.,  Feb.  9,  1915.) 


POST  EXCHANGES:  Shortage  in  accounts;  responsibility. 

Upon  an  examination  of  the  accounts  of  a  certain  post  exchange 
the  Inspector  General's  Department  found  a  shortage  in  the  accounts 
for  each  month  for  the  period  from  August  1,  1913,  to  June  15,  1914, 
aggregating  $655.81.  The  accounts  had  not  been  kept  in  accordance 
Avith  the  requirements  of  the  post  exchange  regulations -and  it  was 
evident  that  the  loss  might  readily  have  been  detected  by  proper 
auditing  of  the  accounts  by  the  members  of  the  post  exchange  coun- 
cil, as  required  by  regulations.  During  the  period  mentioned  the  post 
exchange  council  took  no  inventory  of  the  stock,  notwithstanding  the 
requirements  of  the  regulations  that  such  inventoiy  be  taken  by  them 
quarterly  or  oftener. 

Ileld^  that  post  exchanges  being  agencies  of  the  Government,  the 
duties  imposed  upon  officers  in  the  management  of  their  affairs  are 
as  binding  upon  them  as  an}'  other  duty  to  which  they  may  be  as- 
signed under  competent  militarj^  authority;  that  when  the  property 
or  funds  of  an  exchange  are  lost  through  mismanagement  or  neglect 
of  such  officers  the  least  that  can  or  should  be  exacted,  in  the  public 
interests,  is  that  they  make  good  the  loss;  that  this  principle  applies 
as  well  to  members  of  an  exchange  council  as  to  the  exchange  officer; 
and  that  in  the  instant  case  it  was  the  duty  of  the  Department,  in 
the  public  interests,  to  direct  the  entry  of  stoppages  against  the  pay 
of  the  several  members  of  the  exchange  council  and  of  the  exchange 
officer,  in  equal  sums,  to  cover  the  shortage. 

(40-100,  J.  A.  G.,  Feb.  24,  1915.) 


DIGEST    OF    OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL.       475 

RETIBED  OEEICEES:  Pov/ers  and  duties  when  assigned  to  rsciniting'  duty. 

The  question  was  presented  whether  a  retired  officer  of  the  Army 
detailed  to  recruiting  duty  was  authorized  to  administer  oaths  and 
execute  depositions.  Doubt  arose  because  of  the  opinion  of  this 
office  of  November  14,  1914  (Bull.  No.  52,  W.  D.  1914."p.  4),  holding 
that  a  retired  officer  assigned  to  active  duty  and  detailed  as  acting 
quartermaster  and  directed  to  take  charge  of  the  property  and  funds 
pertaining  to  the  Quartermaster  Corps  at  a  post,  could  not  be  ap- 
pointed summary  court  officer  for  the  reason  that  the  law  authorizing 
the  detail  of  retired  officers  on  staff  duty  requires  that  it  shall  not 
involve  "  service  with  troops."  The  Act  of  April  23,  1904  (33  Stat, 
264),  authorizes  the  Secretary  of  War  to  assign  retired  officers  of 
the  Army,  with  their  consent,  "to  active  duty  in  recruiting"'  and, 
among  other  duties  mentioned,  to  "staff  duties  not  involving  service 
with  troops." 

IlelcL  that  the  statutory  restriction  that  staff  duty  shall  not  involve 
service  with  troops  does  not  apply  to  recruiting  duty;  that  the  lan- 
guage of  the  statute  "active  duty  in  recruiting"  means  that  a  re- 
tired officer  so  detailed  shall  perform  the  same  duty  as  an  officer  on 
the  active  list  so  assigned,  exercising  the  same  power  over  and  bear- 
ing tiie  same  relation  to  enlisted  men  at  the  recruiting  station:  that, 
being  the  only  officer  at  a  recruiting  station,  he  constitutes  the  sum- 
marj^  court-martial  and  is  com.petent  to  administer  oaths  and  execute 
depositions  by  virtue  of  the  Act  of  March  2,  1913,  which  provides 
that  "  when  but  one  officer  is  present  with  a  command,  he  shall  be 
the  summary  court-maitial  of  that  command  and  shall  hear  and 
determine  cases  brought  before  him." 

64-219.22,  J.  A.  G.,  Feb.  12,  1915.) 


TE.ANSP0IITATX0I7:  Excess  shipments  upon  change  of  station. 

An  officer  whose  freight  allowance  upon  change  of  station  was 
5,100  pounds,  in  changing  stations  from  Fort  Riley,  Kans.,  to  Scho- 
field  Barracks,  H.  T.,  shipped  an  automobile  from  San  Francisco 
weighing  2,000  pounds.  At  a  later  date  he  shipped  a  piano  from 
Fort  Riley,  Kans.,  weighing  935  pounds,  and  still  later  household 
goods  weighing  5,042  pounds.  The  total  weight  of  the  shipments 
from  San  Francisco  to  Honolulu  was  7,977  pounds,  and  from  Fort 
Riley  to  Honolulu,  5,977  pounds. 

Held.,  that  the  officer  was  chargeable  only  for  the  excess  shipments 
as  actually  made,  or  for  2,877  pounds  from  San  Francisco,  and  877 
pounds  from  Fort  Riley,  together  with  tlie  additional  expense,  if 
any,  incurred  by  the  Government  by  reason  of  the  excess  shipment 
from  San  Francisco. 

(94-233,  J.  A.  G.,  Feb.  2,  1915.) 


DECISIONS  OF  THE  COMPTSOLLEE,  OF  THE  TKEASTJRY. 

(Digests  prepared  in  the  Ofiice  of  tiie  Judge  Advocate  General.) 

COInTTRACTS:  Adjustment  of  mistake  made  in  final  paym.ent. 

In  nuiking  final  payment  to  a  contractor  for  engineer  supplies 
there  was  erroneously  deducted  as  liquidated  damages  for  a  supposed 
delay  of  three  days  in  making  deliveries  the  sum  of  $120.     It  was 


476       DIGEST    OF    OPINIONS   OP    THE    JUDGE   ADVOCATE   GENERAL. 

found  later  that  contrary  to  the  contract  provisions  no  account  had 
been  taken  of  a  dehiy  of  eight  days  caused  by  the  (lovernment. 

Held.,  that  upon  the  approval  by  the  Chief  of  Engineers  of  the 
finding,  "  the  voucher  submitted  covering  the  refund  of  such  deduc- 
tion may  properly  be  made." 

(Comp.  Geo.  E.  Downey,  Feb.  8,  1915.) 


CONTRACTS:  Deliveries  of  contract  supplies  after  expiration  of  contract. 

A  contract  was  entered  into  for  furnishing  106,000  pounds  of  bran 
at  a  military  post  during  the  fiscal  year  1914.  It  contained  the 
usual  option  in  favor  of  the  United  States  to  increase  or  decrease 
the  quantity  to  the  extent  of  20  per  cent  at  any  time  or  times  during 
the  continuance  of  the  contract,  and  that  in  case  of  the  withdrawal 
of  troops  from  the  post  the  quantity  to  be  delivered  should  be  modi- 
fied in  accordance  with  the  requirements  of  the  Government.  It  was 
further  provided  that  "  in  case  of  change,  if  the  quantitj^  required  be 
increased  or  decreased,  notice  in  writing  of  such  change  will  be  served 
upon  the  contractor  by  the  contracting  officer."  There  was  delivered 
during  the  life  of  the  contract  o«ly  54,900  pounds  of  bran,  this  being 
all  that  was  called  for  b}'  the  Government,  owing  to  a  material 
reduction  in  the  garrison.  The  Government  gave  the  contractor  no 
notice  in  writing  of  its  intention  to  reduce  the  amount  to  be  deliv- 
ered urider  the  contract,  and  the  contractor  for  that  reason  claimed 
the  right  to  deliver  the  remainder  of  the  contract  quantity  at  the 
contract  price.  Upon  the  question  whether  the  Quartermaster  De- 
partment was  authorized  to  accept  the  bran  after  the  contract  had 
expired  and  after  new  contracts  were  awarded  for  bran  at  a  lower 
price. 

Held,  that  the  contract  expired  under  its  own  limitations  on  June 
30,  1914;  that  after  that  date  the  Government  could  not,  as  a  matter 
of  right,  order  supplies  under  the  contract  any  more  than  the  con- 
tractor could  be  compelled  to  deliver  supplies  so  ordered. 

(Comp.  Geo.  E,  Downey,  Feb.  6.  1915.) 


CONTRACTS:   Open  market  purchases. 

A  contract  was  made  for  furnishing  the  Government  Hospital 
for  the  Insane,  Washington,  D.  C,  with  flour,  "  as  may  be  required 
and  ordered"  during  the  period  July  1,  1914,  to  October  31,  1914, 
at  $4.40  per  barrel.  During  July,  August,  and  September  there  were 
duly  delivered  on  orders  796  barrels  of  flour.  The  hospital  having 
ordered  500  barrels  for  October  delivery,  the  contractors  delivered 
250  barrels  and  declined  to  deliver  more,  owing  to  the  fact  that  the 
cost  of  wheat  and  flour  had  materially  advanced,  due  to  the  European 
war  and  other  causes,  and  because  they  considered  the  order  m  excess 
of  the  actual  needs  of  the  hospital  for  the  period  covered  by  the 
contract.  The  hospital  thereupon  purchased  in  the  open  market  250 
barrels  of  a  similar  grade  of  flour,  charging  the  excess  cost,  $387.25, 
against  the  contractors. 

Held,  that  the  contractors  were  obligated  to  furnish  the  quantity 
of  floiir  that  was  ordered  to  supply  the  actual  and  reasonable  needs 


DIGEST    OF    OPINIONS  OF    THE   JUDGE   ADVOCATE   GENERAL.       477 

of  the  hospital  dniinp:  tlie  contrnct  period  ;  that  it  "was  for  the  hospital 
authorities  to  deteriiiine  those  needs;  and  that  any  determination 
of  such  needs  which  on  its  face  did  not  appear  to  be  unreasonable 
or  capricious,  or  made  without  due  regard  for  those  interests  of  the 
contractor  Avhich  general  principles  of  law  would  protect  and  safe- 
guard, would  be  accepted  by  the  Comptroller  as  correct  and  binding 
upon  the  contractors;  but  that,  inasmuch  as  it  had  been  ascertained 
upon  inquiry  that  during  the  contract  period  the  hospital  actually 
used  only  about  1,000  barrels  of  flour,  and  since  the  contractors  had 
delivered  1,046  barrels,  they  had  literally  and  in  fact  supplied  all 
reasonable  needs  of  the  hospital  for  the  full  period  covered  by  the 
contract,  and  that  they  were  consequently  not  liable  for  the  excess 
cost  of  the  250  barrels  charged  against  them. 
(Comp.  Geo.  E.  Downey,  Feb.  13,  1915.) 


COURT-MAIITIAL  SENTENCE:  When  forfeiture  of  pay  commences  to  run. 

A  soldier  whose  term  of  enlistment  expired  March  10,  1914,  was 
retained  to  await  the  sentence  of  a  general  court-martial,  which  vvas 
promulgated  in  orders  dated  March  14,  1914,  as  follows: 

"  To  be  confined  at  hard  labor  at  such  place  as  the  reviewing  au- 
thority may  direct  for  six  months,  and  to  forfeit  ten  dollars  per 
month  for  the  same  period." 

The  soldier  was  discharged  the  service  March  20,  1914.  He  had 
pay  due  him  from  January  1,  1914,  and  the  question  was  presented 
whether  on  his  final  statements  his  pay  for  January  and  February 
was  subject  to  a  deduction  of  $10  per  month  under  the  court-martial 
sentence. 

Held,  that  the  proper  construction  of  the  court-martial  sentence 
meant  that  the  execution  of  the  forfeiture  began  with  date  of  con- 
finement, and  that  if  the  soldier  entered  upon  his  term  of  con- 
finement under  the  sentence  on  March  14,  1914,  the  date  of  the 
promulgation  of  the  sentence,  the  forfeiture  of  pay  commenced  on 
that  date  and  ceased  with  his  discharge  on  March  20,  1914,  when  his 

(Comp.  Geo.  E.  Downey,  Dec.  31,  1914.  and  Feb.  6,  1915.) 
Note.— See  G.  O.  No.  70,  W.  D.,  1914,  p.  13,  where  the  authorized 
form  of  sentence  of  forfeiture  (in  connection  with  a  term  of  confine- 
ment) calls  for  the  forfeiture  to  be  "  for  a  like  period."  Under  this 
form  of  sentence,  the  period  of  forfeiture  would  begin,  as  prescribed 
in  paragraph  976,  Army  Regidations,  "  vitli  the'  peHod  for  lohich 
pay  has  accrued  since  last  payment y 


EXCHANGE:  Payment  cf  salaries  abroad. 

The  military  attache  at  Peking,  China,  as  acting  quartermaster  for 
the  payment  of  his  own  accounts  during  the  period  from  October  1, 
1912,  to  June  30,  1914,  charged  against  the  United  States  and  paid 
to  himself  the  sum  of  $196.04  as  the  cost  of  exchange.  For  example, 
the  officer  stated  his  pay  account  for  a  particular  month,  including 
all  allowances,  at  $417.50.  which  he  computed  as  equivalent  to  $852.04, 
local  currency,  on  the  basis  of  the  value  of  the  Mexican  dollar  in 


478       DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENEBAL. 

China,  as  published  by  the  Treasury  Department  for  customs  pur- 
poses, and  thereupon  obtained  from  the  International  Banking  Cor- 
poration at  Peking  that  amount  of  money  in  exchange  for  his  draft 
drawn  on  the  Assistant  Treasurer  at  New  York  for  $44G.91;  the  dif- 
ference between  the  latter  sum  and  $417.50  being  regarded  as  the 
cost  of  exchange. 

Tlelcl^  that  the  officer  was  only  entitled  to  his  pay  as  fixed  by  law 
in  United  States  Currency ;  that  his  check  in  payment  thereof  drawn 
on  funds  to  his  official  credit  should  have  been  for  the  amount  thus 
due.  and  that  any  excess  was  unauthorized ;  that  while  under  certain 
circumstances  exchange  may  be  paid  in  the  transaction  of  the  public 
business  abroad,  there  is  no  authority  for  it  in  the  pa^yment  of  salaries 
which  are  fixed  bv  law. 

(Comp.  Geo.  E.' Downey,  Feb.  6,  1915.) 


HEAT  AND  lilGIIT:  Furnished  family  of  officer  on  temporary  duty. 

An  officer  whose  regular  station  was  Texas  City,  Texas,  was  as- 
signed to  temporary  duty  at  Vera  Cruz,  Mexico,  during  the  months 
of  July,  August,  September,  and  October,  19l4.  His  family  con- 
tinued to  occupy  his  quarters  at  Texas  Cit}'. 

Held,  that  the  officer  was  entitled  to  have  his  heat  and  light  allow- 
ance furnished  to  his  family  at  his  regular  station  provided  he  did 
not  avail  himself  of  such  allowance  eisevrhere. 

(Comp.  Geo.  E.  Downey,  Jan.  5,  1915.) 

Note, — The  note  published  on  page  6  of  Bulletin  No.  50,  W.  D., 
1914,  should  have  been  inserted  on  page  11,  following  the  Digest  of 
Comptroller's  Decision  of  October  10,  1914. 


BULLETIN  11. 

Bulletin  1  WAR  DEPARTMENT, 

No.  U.   J  AVasiiington,  ApHl  12,  1915. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  March,  1915,  of  certain  decisions  of 
the  Comptroller  of  the  Treasury  and  of  the  courts,  is  x:)ublished  for 
the  information  of  the  service  in  general. 
[2255370  B— A.  G.  O.] 

Br  ORDER  or  the  Secretary  of  War: 

H.  L.  SCOTT, 

Brigddier  General,  CMef  of  Staff. 
Official  : 

H.  P.  McCAIN, 

Th-e  xldjutant  Gerheral. 


OPIinOlTS  OE  TEE  JUDGE  ADVOCATE  GEITEPAL. 

AE-MY  ORDERS:  Not  revocable  after  executed. 

An  officer  of  the  Medical  Reserve  Corps,  after  serving  on  active 
duty  for  more  than  a  year,  was  notified  by  War  Department  order 
that  his  relief  therefrom  would  take  effect  upon  the  arrival  of  a 
successor.  The  officer  at  the  proper  time  complied  with  this  order 
directing  that  he  proceed  to  his  home  and  stand  relieved  from  active 
dutv,  but  on  the  same  date  applied  for  a  month's  leave  of  absence 
that  he  had  earned  and  not  taken.  It  was  recommended  in  the 
officer's  behalf  that  the  order  directing  his  relief  from  active  duty 
be  rescinded  in  order  that  he  might  take  advantage  of  the  leave  that 
he  had  earned.  The  Act  of  April  23,  1908  (35  Stat.,  68),  creating 
the  Medical  Reserve  Corps,  prescribes  when  officers  of  that  corps  may 
be  called  into  active  service,  and  provides  for  their  relief  from  such 
duty  "  when  their  services  are  no  longer  necessary." 

Held,  that  the  order  having  been  regular  and  valid  its  effect  was 
to  relieve  the  officer  from  active  duty,  and  that  the  department  had 
no  power  to  revoke  it  so  as  to  restore  the  officer  to  a  duty  status. 

(2-100,  J.  A.  G.,  Mar.  15,  1915.) 


DESERTIOlSf:  Removal  of  erroneous  cliarge  after  separation  of  soldier  from 
the  service. 

A  soldier  while  under  a  charge  of  desertion  was  discharged  from 
the  service  of  the  United  States  on  a  surgeon's  certificate  of  disa- 
bility.    The  Department  Commander  subsequently  issued  an  order 

479 


480       DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE    GENEEAL. 

setting  aside  the  charge  of  desertion  as  having  been  erroneously- 
made. 

Ileld^  that  while  under  paragraph  131,  Army  Regulations,  the 
authority  competent  to  order  the  trial  of  a  deserter  is  competent  to 
set  aside  the  charge  of  desertion  as  having  been  erroneously  made,  he 
can  not  set  aside  the  charge  or  exercise  any  administrative  function 
respecting  the  man's  military  status  after  the  soldier's  separation 
from  the  service,  when  the  fact  of  desertion  becomes  a  matter  to 
be  determined  by  the  War  Department. 

(26-520,  J.  a:  G.,  Mar.  30,  1915.) 


EDITCATIOWAL  INSTITUTIONS:  Cost  to  students  of  militai-y  supplies  pur- 
chased from  the  War  Department. 

The  Act  of  July  17„  1014  (38  Stat.,  512),  authorizes  educational 
institutions  to  which  officers  of  the  Army  are  detailed  as  professors 
of  military  science  and  tactics  to  purchase  from  the  War  Department 
for  the  use  of  their  military  students  such  stores,  supplies,  materiel 
of  war,  and  military  publications  as  are  furnished  to  the  Army  "  with 
the  cost  of  transportation  added." 

Ilcld^  that  this  statute  contemplates  that  the  uniforms  for  the  use 
of  students  should  be  furnished  to  such  students  at  the  War  Depart- 
ment price  with  only  the  cost  of  transportation  added,  and  that  the 
educational  institution  could  not  properly  charge  the  student  with 
any  additional  expense  to  cover  storage  or  the  like. 

(80-lCO,  J.  A.  G.,  Mar.  3,  1915.) 


LINE  OF  DUTY:  Accident  causing  death  of  soldier  absent  on  hunting  pass. 

An  enlisted  man  who,  with  three  other  soldiers,  had  been  granted 
a  hunting  pass,  was  shot  by  the  accidental  discharge  of  a  shot  gun 
in  the  escort  wagon  in  which  the  hunting  party  Avas  returning  to 
their  station.  The  hunting  pass  covered  the  period  from  10  a.  m., 
December  31,  1914,  to  reveille.  January  4,  1915.  Eeveille  at  their 
station  was  at  7.15  a.  m.,  and  the  accident  occurred  about  7.30  a.  m., 
fifteen  minutes  after  the  expiration  of  the  pass,  and  while  the  party 
was  thirty-three  miles  from  their  station,  en  route  thereto.  The 
soldier  died  from  the  wound.  There  was  no  evidence  that  he  was 
intoxicated  or  that  he  was  guilty  of  any  negligence  or  misconduct. 

Held.,  that  hunting  passes  as  provided  for  in  paragraph  66,  Army 
Eegulations,  being  privileges  for  the  purpose  of  hunting  game,  re- 
sulting in  small  arms  practice,  a  soldier's  status  while  so  engaged 
falls  within  the  description  of  duty  in  respect  of  any  injuries  re- 
ceived from  disabilities  incurred  thereunder;  that  a  soldier  when  on 
furlough  may  be  in  line  of  duty  wdien  en  route  to  his  station  at  the 
expiration  of  his  leave  (Dig.  Op.  J.  A.  G.,  1912,  p.  688),  and  that 
in  the  instant  case  the  soldier's  death  should  be  considered  as  having 
occurred  in  line  of  duty. 

(54-020,  J.  A.  G.,  Mar.  29,  1915.) 


DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       481 

NAVIGABLE  WATERS:  Damages  to  wharf  resulting  from  dredging  opera- 
tions. 

The  owner  of  a  wharf  on  the  river  front  in  the  City  of  Troy, 
N.  Y.,  alleged  that  as  a  result  of  dredging  operations  carried  on  by 
authority  of  Congress  in  the  river  in  front  of  his  wharf  the  said 
wharf  was  damaged.  He  claimed  that  the  Government  was  respon- 
sible and  should  restore  the  wharf  to  its  former  condition.  He  did 
not  assert  that  the  damage  was  the  result  of  carelessness  or  negli- 
gence on  the  part  of  those  executing  the  dredging  operations,  but 
contended  that — 

"  Where  the  work  contemplates  damage  to  the  property  of  in- 
dividuals or  where  the  damage  is  necessarily  incident  to  the  work, 
though  unintentional,  that  damage  should  be  repaired  or  compensated 
for  as  a  part  of  the  original  plan  and  paid  for  out  of  the  funds  ap- 
propriated for  the  execution  of  that  plan." 

On  behalf  of  the  Government  it  was  shown  that  the  dredging 
operations  were  carried  on  in  conformity  with  the  project  adopted 
by  Congress  for  the  improvement  of  the  river;  that  the  excavations 
were  confined  to  the  natural  channel ;  that  the  contractor  used  all 
reasonable  precautions;  and  that  the  failure  of  the  wharf  was  not 
due  to  carelessness  on  the  part  of  the  contractor  but  to  the  weakness 
of  the  construction  and  the  failure  of  the  owner  to  take  proper  steps 
to  strengthen  it  after  having  been  fully  and  seasonabl}^  advised  of 
the  possibility  of  damage. 

Held^  that  as  to  structures  situated  waterward  of  high  water  mark 
on  navigable  waters  as  this  one  was,  the  cases  are  clear  that  they 
are  subject  to  the  consequences  resulting  from  the  exercise  by  Con- 
gress of  the  dominant  right  to  improve  the  navigable  waters,  and 
that  the  Government  is  not  liable  for  any  damages  resulting  from  the 
prosecution  of  such  an  improvement  where  such  damages  are  purely 
consequential  as  in  the  instant  case. 

(62-853,  J.  A.  G.,  Mar.  27,  1915.)      . 


REWARDS:  Not  payable  except  in  pursuance  of  a  previous  offer. 

Four  fishermen  who  found  a  drifting  submarine  mine  in  the  ocean 
surf  recovered  it,  and  it  was  later  taken  possession  of  by  the  military 
authorities.  On  the  question  as  to  whether  the  fishermen  could  be 
paid  a  small  reward, 

Held^  that  as  no  reward  had  been  offered,  a  payment  as  suggested 
would  be  in  the  nature  of  a  payment  for  voluntary  services  and  un- 
authorized in  the  absence  at  an  express  statute  covering  such  cases. 

Held  further,  that  a  reward  for  services  of  this  character  might 
be  paid  from  the  appi-opriation  for  contingencies  of  the  Army  in 
any  case  where  the  services  were  performed  in  pursuance  of  an  offer 
of  reward  previously  made. 

(80-015,  J.  A.  G.,  Mar.  18,  1915.) 


TAXATION:  Internal  revenue  stamp  on  soldier's  baggage  at  customhouse. 

The  Internal  Revenue  Act  of  October  22,  1914   (38  Stat.,  7G2), 
requires  the  paj^ment  of  a  stamp  tax  upon  the  "  entry  of  any  goods, 

93668°— 17 31 


482       DIGEST   OF    OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL. 

wares,  or  merchandise  at  any  customhouse,  either  for  consumption 
or  warehousing,  not  exceeding  $100  in  value,  25  cents,"  which  ap- 
plies ordinarily  to  personal  baggage  of  persons  arriving  at  any  port 
of  the  United  States  by  sea.  The  Department's  attention  was  called 
to  the  fact  that  noncommissioned  officers  returning  from  detached 
duty,  conducting  detachments  of  recruits  to  the  Canal  Zone,  were 
required  by  the  customhouse  officials  at  New  York  to  pay  25  cents 
as  a  stamp  tax  on  each  baggage  declaration  for  their  personal  bag- 
gage, consisting  only  of  necessary  clothing  and  toilet  articles. 

Held.,  that  the  provision  of  law  in  question  was  not  intended  to  be 
so  applied  as  to  tax  officers  of  the  Federal  Government  or  soldiers 
in  the  performance  of  their  official  duties. 

(90-313,  J.  A.  G.,  Mar.  26,  1915.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  oflBce  of  the  Judge  Advocate  General.) 

APPROPRIATIONS:  Expenses  for  heating  apparatus  in  new  buildings. 

Upon  the  question  whether  the  cost  of  heating  apparatus  for  a  new 
building  at  the  Army  and  Navy  General  Hospital,  Hot  Springs, 
Ark.,  should  be  considered  as  a  part  of  the  expenses  of  construction 
of  such  building,  within  the  meaning  of  the  appropriation  "  Con- 
struction and  repair  of  hospitals,"  and  included  in  the  limit  of 
$20,000  fixed  by  Section  1136,  Revised  Statutes, 

Held.,  that  if  Congress  had  made  no  other  provision  for  such  equip- 
ment the  construction  appropriation  would  be  available  therefor,  but 
that  inasmuch  as  the  appropriation  "  Regular  supplies  "  contained  a 
specific  provision  for  "  heating  apparatus,"  the  cost  of  such  equip- 
ment could  not  properly  be  considered  as  an  item  of  construction, 
within  the  limit  fixed  by  Section  1136,  Revised  Statutes,  but  the  ex- 
pense should  be  incurred  under  and  chargeable  to  the  appropriation 
"•  Regular  supplies." 

(Comp.  Geo.  E.  Downey,  Mar.  24,  1915.) 


CONTRACTS:  Deduction  for  liquidated  damages  when  in  fact  none  resulted 
from  delayed  performance. 

A  contractor  for  furnishing  and  erecting  lock  gates  for  a  lock  and 
dam  construction  within  six  months  after  notification  of  the  approval 
of  the  contract  was  delayed  for  the  convenience  of  the  Government, 
and  for  other  causes  excusable  under  the  contract,  in  making  deliv- 
ery of  the  gates  until  after  the  contract  period  had  expired,  and  the 
time  was  extended  in  accordance  with  the  terms  of  the  contract  for 
a  period  equal  to  the  delay  for  which  the  contractor  was  not  re- 
sponsible. The  contractor  failed  to  complete  the  work  within  the 
contract  time,  as  extended,  and  required  32  days  additional.  It  was 
stipulated  that  time  was  of  the  essence  of  the  contract,  and  liquidated 
damages  at  the  rate  of  $20  per  day  were  agreed  upon  for  such  de- 
lays as  were  not  excusable,  in  addition  to  the  cost  of  superintend- 
ence and  inspection.    In  submitting  voucher  for  final  payment  the 


DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       483 

contracting  officer  certified  that  the  completion  of  the  general  im- 
provements was  not  delayed  by  the  delay  in  the  completion  of  this 
contract,  nor  had  the  United  States  suffered  any  actual  damages 
other  than  the  cost  of  superintendence  and  inspection. 

Tleld^  that  the  contract  having  provided  for  the  deduction  of  liqui- 
dated damages  at  an  agreed  rate,  and  such  provision  not  having  been 
waived  or  nullified  by  the  acts  of  the  parties,  neither  of  the  contract- 
ing parties  could  be  heard  to  say  that  the  delay  not  properly  excused 
had  in  fact  resulted  in  no  damages  to  the  Government;  that  where 
agreed  liquidated  damages  are  not  manifestly  unreasonable  or  ca- 
pricious, such  agreement  will  be  enforced  regardless  of  whether  any 
damages  in  fact  result;  that  the  provision  in  the  contract  for  the 
proper  extension  of  time  to  equal  that  lost  without  fault  of  the  con- 
tractor operated  to  overcome  the  rule  announced  in  judicial  decisions 
that  where  the  Government  is  responsible  for  the  failure  of  a  con- 
tractor to  complete  a  work  within  a  stipulated  time  it  forfeits  all 
claim  to  the  stipulated  damages  for  subsequent  delays  for  which  the 
contractor  is  responsible. 

Held  further^  that  the  contracting  officer  having  in  mind  the 
weather  conditions  usually  prevailing  during  the  original  contract 
period  in  this  case,  and  those  that  actually  prevailed  after  its  expira- 
tion, might  be  justified  in  making  a  more  liberal  finding  as  to  the 
extension  of  time  properly  allowable  to  the  contractor  on  the  theory 
that  one  day  after  the  original  contract  time  expired  was  not  equiva- 
lent to  one  day  prior  thereto. 

(Comp.  Geo.  E.  Downey,  Jan.  29,  1915.) 


HEAT  AND  LIGHT:  Fictitious  leases  of  quarters. 

The  Auditor  for  the  War  Department  disallowed  certain  payments 
for  heat  and  light  under  a  lease  of  quarters  made  by  a  quartermaster, 
purporting  to  be  for  one  room  to  be  occupied  by  a  quartermaster  ser- 
geant, the  rental  price  being  specified  as  $14  per  month,  and  heat  and 
light  additional  in  accordance  with  the  allowances  specified  in  Army 
Kegulations.  The  Auditor's  action  in  disallowing  the  items  for  heat 
and  light  was  based  on  the  fact  that  the  disbursing  officer  made  a 
statement  to  the  effect  that  $14  was  the  commercial  value  of  the  room 
occupied,  and  that,  therefore,  the  additional  charge  for  heat  and  light 
was  not  a  proper  charge  against  the  United  States.  On  appeal  to  the 
Comptroller, 

Held,  that  the  so-called  lease  was  fictitious  and  a  subterfuge,  as  the 
"  room  "  rented  was  in  fact  a  six-room  house  for  which  the  agreed 
rental  was  $20  per  month,  the  entire  house  having  been  occupied  by 
the  sergeant  and  his  family,  and  the  lessor  having  furnished  no  heat 
or  light  for  the  house ;  that,  owing  to  the  irregularities,  the  Auditor 
would  have  been  justified  in  disallowing  credit  for  any  part  of  the 
payments,  including  the  $14  per  month  rental,  but  inasmuch  as  it 
appeared  that  a  suitable  room  could  not  have  been  secured  for  less 
than  $14  per  month,  that  item  was  allowed. 
(Comp.  Geo.  E.  Downey,  Mar.  31,  1915.) 


484        DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEKAL. 

PURCHASE  OF  SUPPLIES:  Bequirement  as  to  advertising  in  purchasing 
motor  trucks. 

The  Chief  Signal  Officer,  desiring  to  obtain  two  motor  trucks  of  a 
certain  make,  requested  the  Quartermaster  Department  to  purchase 
them  "  conforming  with  the  specifications  of  your  department."  Cir- 
cular advertisements  were  sent  out  to  different  manufacturers  for  two 
motor  trucks  in  accordance  with  specifications  approved  by  the  Chief 
Signal  Officer.  The  lowest  bid  obtained  was  $2,200  each,  and  the  next 
lowest  w^as  $2,500  each  for  the  unake  of  truck  desired  by  the  Chief  Sig- 
nal Officer,  who  recommended  that  the  latter  be  purchased,  as  they 
were  "  considered  far  more  desirable  for  use  in  the  aero  squadron 
than  any  other  type  of  truck."  On  the  Chief  Signal  Officer's  further 
recommendation,  approved  by  the  Assistant  Secretary  of  War,  all 
proposals  were  rejected,  and  the  two  trucks  of  them«^  desired  by  the 
Chief  Signal  Officer  were  obtained  by  what  was  considered  an  open- 
market  purchase. 

Ileld^  that  the  insistence  of  the  Chief  Signal  Officer  for  a  truck  of 
a  particular  make  when  trucks  of  other  makes  would  meet  his  own 
specifications  as  to  type  did  not  warrant  the  purchase,  without  adver- 
tising, of  trucks  of  that  make,,  and  that  the  fact  that  a  number  of  deal- 
ers submitted  bids  was  sufficient  evidence  that  the  desired  type  of 
truck  could  be  obtained  from  other  than  one  dealer,  but  that,  notwith- 
standing the  recommendation  of  the  Chief  Signal  Officer  to  reject 
all  bids  and  obtain  trucks  of  a  particular  J7iake  by  an  open-market 
purchase,  the  purchase  was  actually  made  as  the  result  of  due  adver- 
tisement, and  that  it  was  doubtless  within  the  discretion  of  the  Sec- 
retary of  War  to  purchase  other  than  of  the  lowest  bidder  if  such 
purchase  was  fairly  deemed  to  be  in  the  best  interests  of  the  Gov- 
ernment. 

(Comp.  Geo.  E.  Downey,  Mar.  8,  1915.) 


TRANSPORTATION:  Land  grant  deductions. 

The  Union  Pacific  Railway  Company  appealed  from  the  action  of 
the  Auditor  in  the  matter  of  disallowances  on  account  of  land  grant 
deductions  in  settlement  for  passenger  transportation  on  Government 
requests  for — 

(1)  Rejected  applicants  for  enlistment  in  the  Army  en  route  to  the 
recruiting  station. 

(2)  Discharged  enlisted  men  en  route  to  their  homes  or  elsewhere 
after  serving  sentence  as  military  prisoners. 

(3)  Enlisted  men  of  the  Army  en  route  to  their  homes  on  dis- 
charge. 

(4)  Enlisted  men  of  the  Army  en  route  to  their  homes  on  retire- 
ment. 

(5)  Enlisted  men  of  the  Army  en  route  to  their  proper  stations 
after  having  reported  from  furlough. 

The  railway  company  contended  that  these  claFses  of  persons  were 
not  troops,  within  the  meaning  of  the  land  grant  acts,  and  therefore 
the  deductions  made  by  the  auditor  were  unauthorized. 

Held^  in  affirming  the  action  of  the  auditor,  that  the  transporta- 
tion of  troops  as  contemplated  by  the  land  grant  acts  applies  to  the 
transportation  required  by  the  United  States  for  all  persons  in  con- 


DIGEST    OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       485 

nection  with  its  military  service,  and  extends  from  the  beginning  of 
the  process  of  securing  men  for  the  military  service  until  they  are 
returned  after  severance  of  said  connection  to  the  place  where  the 
initial  steps  for  entering  the  service  were  taken. 
(Comp.  Geo.  E.  Downey,  Mar.  24,  1915.) 


DECISIONS  OF  THE  COURTS. 

(Digests  prepared  in  the  office  of  tlie  Judge  Advocate  General.) 

CONTRACTS:  Damages  for  breach  and  deduction  from,  moneys  due  under 
subsequent  contract. 

A  contractor  for  furnishing  certain  material  for  the  use  of  tlie 
Pananui  Canal  Commission  in  the  construction  of  water  systems  in 
the  Canal  Zone  failed  to  deliver  the  materials  on  contract  time,  the 
last  delivery  being  about  three  months  overdue.  On  account  of  such 
delay,  the  water  systems  were  installed  three  months  later  than  they 
otherwise  would  have  been,  and  in  consequence  suitable  drinking 
water  had  to  be  transported  to  the  cities  involved  in  tank  cars  at  con- 
siderable expense.  Other  expenses  were  also  incurred  on  account  of 
the  delayed  deliveries.  The  contractor,  however,  was  paid  the  full 
amount  of  his  contract  without  deductions,  there  being  no  liquidated 
damage  clause  in  the  agreement.  A  subsequent  contract  was  en- 
tered into  between  the  same  parties  to  furnish  like  material,  and  was 
duly  performed,  but  in  settlement  the  Canal  Commission  deducted 
the  sum  of  $1,000  as  damages  claimed  to  have  been  sustained  by  the 
United  States  on  account  of  delay  in  the  performance  of  the  first 
contract.  In  an  action  by  the  contractor  to  recover,  the  Government 
set  up  a  counter  claim  of  $8,182.34  as  additional  damages  alleged  to 
have  been  sustained  under  the  first  contract  due  to  the  delayed  per- 
formance thereof. 

Tleld^  that  the  payment  of  the  whole  amount  due  under  the  firet 
contract  was  a  final  settlement  of  all  matters  connected  with  that 
contract,  and  that  the  settlement  could  not  thereafter  be  questioned 
except  for  fraud  or  mistake  of  fact,  and  there  being  no  evidence  of 
either,  the  counter  claim  could  not  be  sustained,  and  the  claimant  was 
entitled  to  recover  the  $1,000  sued  for. 

{Camden  Iron  ^¥o'rks  v.  United  States,  No.  30307,  Ct.  CI.,  Mar. 
15,  1915.) 


CONTRACTS:  Default  of  contractor;  liability  of  surety;  new  contract. 

Under  a  contract  dated  February  23,  1905,  for  the  construction  of 
a  building  for  the  United  States,  the  contractor  engaged  to  furnish 
all  material  and  labor,  and  to  complete  the  building  on  or  before 
September  1,  1905,  furnishing  a  penal  bond  in  the  sum  of  $6,500  for 
the  faithful  performance  of  the  contract.  The  United  States  was 
given  the  right  under  the  contract,  in  the  case  of  the  contractor's 
default,  to  complete  the  woi-k  at  the  contractor's  expense,  "  in  which 
event "  the  contractor  and  his  surety  were  to  be  further  liable  for  any 
damages  incurred  tli rough  such  default  a^nd  any  and  all  other 
breaches  of  his  contract.     The  contract  required  the  contractor  to  be 


486       DIGEST    OP    OPINIOISrS    OF   THE    JUDGE   ADVOCATE   GENERAL. 

responsible  for  all  damages  to  the  building,  whether  from  fire  or 
other  causes,  during  the  prosecution  of  the  work  and  until  its  ac- 
ceptance, and  declared  that  partial  payments  were  not  to  be  con- 
sidered as  an  acceptance  of  any  part  of  the  work  or  material.  Under 
the  terms  of  the  agreement,  the  contractor  was  paid  as  the  work 
progressed  an  aggregate  of  $7,895,40.  The  contractoi^  not  only 
failed  to  complete  the  work  on  or  before  the  first  of  September,  but 
failed,  after  that  date,  to  take  such  action  as  would  remedy  his 
default.  On  October  27  the  United  States  rejected  the  work  and 
materials  and  the  building  as  offered  for  acceptance,  and  on  Novem- 
ber 4,  while  the  contractor  was  still  in  possession,  it  was  completely 
destroyed  by  fire.  He  took  no  steps  thereafter  to  rebuild,  or  to  carry 
out  the  terms  of  the  contract ;  whereupon  the  United  States  declared 
him  in  default  and  confiscated  certain  materials,  etc.  About  a  year 
thereafter,  the  United  States  entered  into  a  contract  with  another 
party  for  the  erection  of  the  desired  building  on  the  same  site,  but 
the  building  was  to  be  materially  different  and  more  expensive.  In 
an  action  against  the  defaulting  contractor  and  the  surety  for  dam- 
ages, including  the  recovery  of  the  amount  of  the  progress  payments 
with  interest, 

Held^  that  the  surety  company's  liabilities  for  all  damages  became 
fixed  upon  occurrence  of  the  complete  default  of  the  contractor,  and 
was  not  released  by  the  failure  of  the  Government  to  have  the  same 
work  completed  in  accordance  with  the  first  contract ;  that  the  rights 
and  liabilities  between  the  parties,  being  fixed  by  the  complete  breach 
of  the  agreement,  were  not  to  be  affected  by  any  subsequent  and  inde- 
pendent transaction  between  the  Government  and  third  parties,  the 
doctrine  exonerating  the  surety  on  the  bond  by  the  public  contractor 
in  case  of  a  change  in  the  contract  having  no  application.  Held  fur- 
ther^ that  the  Government  was  entitled  to  interest  on  the  amount  of 
the  advance  payments  from  the  time  the  w^ork  should  have  been  com- 
pleted under  the  contract,  but  that  the  surety  company  was  liable 
as  to  the  interest  only  for  such  an  amount  as  accrued  from  its  own 
default  in  unjustly  withholding  payment  after  being  notified  of  the 
default  of  the  principal. 

( United  States  v.  U.  8.  Fidelity  &  Guaranty  Co.^  decided  by  the 
U.  S.  Supreme  Court  Feb.  23,  1915.) 


PARDON:  Not  effective  until  accepted. 

A  witness  in  a  grand  jury  investigation  of  alleged  customs  frauds, 
in  violation  of  the  Federal  Criminal  Code,  refused  to  answer  certain 
questions,  claiming  upon  his  oath  that  his  answers  might  tend  to 
criminate  him.  Thereupon  he  was  remanded  to  appear  at  a  later 
date,  and  upon  so  appearing  he  was  handed  a  pardon  from  the  Presi- 
dent, which  he  was  told  had  been  obtained  for  him  upon  the  strength 
of  his  testimony  before  the  other  grand  jury.  He  declined  to  accept 
the  pardon  or  to  answer  the  questions  which  he  claimed  would  tend 
to  criminate  him.  He  was  then  presented  by  the  grand  jury  to  the 
district  court  for  contempt,  adjudged  guilty  thereof  and  compelled 
to  pay  a  fine  of  $500.  Upon  appeal  by  writ  of  error  to  the  Supreme 
Court, 


DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.         487 

Ileld^  that  a  pardon  from  the  President,  to  be  effective,  must  be 
accepted  by  the  person  to  whom  it  is  tendered ;  that  the  tender  of  a 
pardon  from  the  President  does  not  destroy  the  privileo^e  of  a  wit- 
ness against  self -crimination,  but  he  may  reject  the  pardon  and 
refuse  to  testify  on  the  ground  that  his  testimony  may  have  an  in- 
criminating effect. 

{Burdieh  v.  United  States,  decided  by  the  U.  S.  Supreme  Court 
Jan.  25,  1915.) 


BULLETIN  18. 

BulletinI  WAE  DEPAETMENT, 

No.  18.    j  Washington,  May  16^  1915. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
for  the  month  of  April,  1915,  and  of  certain  decisions  of  the  Comp- 
troller of  the  Treasury  and  of  the  courts,  is  published  for  the  infor- 
mation of  the  service  in  general. 
[2255370  C— A.  G.O.] 

By  ORDER  OF  THE  SECRETARY  OF  WaR. 

TASKER  H.  BLISS, 

Brigadier  General^  Acting  Chief  of  Staff. 
Official  : 

H.  P.  McCAIN, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ARMY  RESERVE:  Medical  treatment  of  members. 

On  the  question  whether  members  of  the  Army  Reserve  are  en- 
titled to  medical  treatment  in  military  hospitals, 

Held^  that  there  is  no  authority  therefor ;  that  the  status  and  rights 
of  reservists  are  determined  by  the  Act  of  August  24,  1912,  establish- 
ing the  Army  Reserve,  which  Act  declares  that  soldiers  are  to  be 
furloughed  to  the  Army  Reserve  under  conditions  therein  specified, 
"  without  pay  and  allowances,"  and  that  the  language  "  without  pay 
and  allowances  "  comprehends  not  only  fixed  allowances,  but  those 
of  an  indirect  nature  like  medical  supplies  and  attendance  and  hos- 
pital treatment. 

(6-300,  J.  A.  G.,  Apr.  10,  1915.) 


DESERTER:  Transportation  and  burial  of  remains  of  deserter  killed  while 
resisting  arrest. 

A  soldier  on  duty  at  Tientsin,  China,  as  Legation  Guard,  deserted 
in  1912,  and  about  two  years  thereafter  was  arrested  by  the  marshal 
of  the  United  States  consular  court  at  Shanghai,  China,  on  the  charge 
of  desertion.  While  attempting  to  escape  from  such  custody,  he  was 
shot  and  killed  by  the  prison  keeper,  and  was  buried  at  Shanghai. 
Request  was  made  by  the  soldier's  mother  to  have  the  remains  re- 
moved to  this  country  for  burial  at  the  expense  of  the  United  States. 
The  usual  provision  contained  in  the  current  Sundry  Civil  appro- 
priation act  (38  Stat.,  631)  authorized  the  removal  to  their  homes 
or  to  a  national  cemetery  at  public  expense  "  of  the  remains  of  ofR- 
(.gj.g     *     *     *      ^j^^  enlisted  men  on  the  Army  active  list.''''     On  the 

488 


DIGEST    OF    OPINIONS   OF    THE   JUDGE  ADVOCATE   GENERAL.       489 

question  whether  the  soldier  couhl  be  considered  as  having  been  on 
the  active  list  at  the  time  of  his  death  within  the  meaning  of  this 
legislation,  in  view  of  the  fact  that  at  such  time  he  was  borne  on  the 
rolls  as  a  deserter,  but  had  not  been  convicted  by  a  court  martial, 

Ileld^  that  for  certain  purposes  the  fact  of  desertion  may  be  deter- 
mined administratively  (Dig.  Op.  J.  A.  G.,  1912,  p.  416;  12  Comp. 
Dec,  328)  ;  that  when  the  charge  of  desertion  is  entered,  following 
the  unauthorized  absence  of  the  soldier,  he  is  dropped  from  the  rolls 
of  the  Army  as  a  deserter,  and  that  this  effectively  removes  him  from 
the  "  active  list,"  to  which  he  is  not  again  restored  until  he  is  returned 
to  military  control  and  at  least  taken  up  as  a  returned  deserter;  that 
in  the  instant  case,  as  the  party  had  not  been  returned  to  the  military 
authorities  and  taken  up  as  a  returned  deserter,  he  could  not  properly 
be  regarded  as  being  on  the  active  list  at  the  time  of  his  death,  within 
the  meaning  of  the  statute  in  question. 

(5-244.1,^J.  A.  G.,  Apr.  2,  1915.) 


FOREIGN  SERVICE:  Limitation  as  to  service  in  the  Philippines  and  Canal 
Zone. 

As  to  the  proper  construction  of  the  following  proviso  in  the  Army 
appropriation  act  approved  March  4,  1915: 

"That  on  a^nd  after  October  first,  nineteen  hundred  and  fifteen, 
no  officer  or  enlisted  man  of  the  Army  shall,  except  upon  his  own 
request,  be  required  to  serve  in  a  single  tour  of  duty  for  more  than 
two  years  in  the  Philippine  Islands,  nor  more  than  three  years  in  the 
Panama  Canal  Zone,  except  in  case  of  insurrection  or  of  actual  or 
threatened  hostilities," 

Held^  that  this  legislation  applies  to  tours  of  duty  entered  upon 
before  October  1,  1915,  as  well  as  those  begun  on  or  after  that  date, 
and  that  consequently  any  officer  or  enlisted  man  serving  in  the 
Philippine  Islands  or  in  the  Canal  Zone  on  or  after  October  15  [1], 
1914,  unless  he  has  requested  otherwise,  will  come  within  the  limita- 
tions of  the  act,  upon  his  completion  of  two  years'  service  in  the 
Philippines,  or  three  years'  service  in  the  Canal  Zone,  of  his  current 
tour  of  duty. 

(92-400,  J.  A.  G.,  Apr.  8,  1915.) 


INSURANCE;  Packages  sent  by  parcel  post. 

An  officer  of  the  Medical  Department  requested  that  he  be  fur- 
nished a  supply  of  postage  stamps  for  parcel  post  insurance  pur- 
poses, stating  that  the  stamps  were  required  for  insuring  packages 
sent  by  mail  containing  articles  of  considerable  value. 

Helcl^  that  in  the  absence  of  a  specific  appropriation  therefor,  the 
stamps  could  not  legally  be  furnished,  the  Comptroller  having  re- 
peatedly ruled  against  the  propriety  of  government  officers  incurring 
expenses  for  the  insurance  of  government  property,  both  upon  the 
ground  that  the  appropriations  sought  to  be  charged  with  the  ex- 
penses were  not  available,  and  because  it  was  against  the  policy  of^ 
the  government  to  insure  its  property. 

(5-244,  J.  A.  G.,  Apr.  5,  1915.) 


490        DIGEST    OF    OPIISriONS    OF    THE    JUDGE   ADVOCATE    GENERAL. 

NEGLIGENCE:  Pay  of  enlisted  men  entrusted  to  officer,  loss  of. 

In  the  paj'ment  of  a  troop  of  cavalry  the  commanding  officer 
thereof,  under  authority  of  Par.  723,  Mannal  for  the  Pay  Depart- 
ment, 1910,  received  the  pay  of  twenty  enlisted  men  who  were  on 
detached  service.  A  few  days  thereafter  this  officer,  preparatory  to 
taking  advantage  of  a  leave  of  absence,  turned  the  money  over  to  a 
lieutenant,  the  next  senior  officer  on  duty  with  the  troop.  The  latter 
officer  locked  the  funds  in  a  desk  in  his  quarters,  and  they  were 
stolen  from  the  desk  by  an  enlisted  man,  w^ho  deserted.  A  board  of 
officers  convened  to  investigate  the  matter  found,  as  a  fact,  that  the 
loss  of  the  funds  was  due  to  negligence  on  the  part  of  the  lieutenant 
in  placing  them  in  his  desk  instead  of  depositing  them  in  the  quarter- 
master's safe. 

Held^  that  in  the  absencfe  of  an  express  provision  to  the  contrary 
an  officer  whose  duty  it  is  to  receive  pay  of  absent  enlisted  men,  under 
Par.  269,  Manual  for  the  Pay  Department,  may  require  the  assist- 
ance of  subalterns  in  the  perforaiance  of  this  duty;  that  it  was 
proper  for  the  commanding  officer  of  the  troop,  preparatory  to  going 
on  leave  of  absence,  to  dispose  of  the  funds  as  he  did ;  and  that  as  the 
loss  of  the  funds  w^as  due  to  negligence  on  the  part  of  the  officer  to 
whom  they  were  thus  properly  transferred,  the  latter  should  be  held 
responsible  therefor. 

(72-514,  J.  A.  G.,  Apr.  30,  1915.) 


PAY    AND    ALLOWANCE:   Deduction    of    pay    for    absence    due    to    mis- 
conduct during  prior  enlistment. 

The  question  was  presented  whether  a  soldier  who  was  absent  from 
duty  on  account  of  a  venereal  disease  contracted  during  a  previous 
enlistment,  and  which  was  not  detected  at  the  time  of  his  reenlist- 
ment,  was  entitled  to  pay  for  the  period  of  such  absence,  in  view  of 
the  provision  of  the  Act  of  April  27,  1914  (38  Stat.,  353),  against 
the  allowance  of  pay  to  any  officer  or  enlisted  man  for  time  absent 
from  duty  "  on  account  of  disease  resulting  from  his  own  intemperate 
use  of  drugs  or  alcoholic  liquors  or  other  misconduct."  The  soldier 
was  discharged  from  his  first  enlistment  in  July,  1911,  and  reen- 
listed  in  April,  1914.  It  was  suggested  by  the  surgeon  that  the  sol- 
dier was  guilty  of  fraud  in  connection  with  his  latter  enlistment. 

llcld^  that  if  the  soldier  knowingly  and  wilfully  misrepresented 
his  physical  condition  at  the  time  of  his  1914  enlistment,  and  his  ac- 
ceptance depended  upon  his  concealment  and  misrepresentation  of 
the  true  facts,  he  was  guilty  of  fraudulent  enlistment  and  subject  to 
trial  by  court-martial,  as  provided  by  Section  3  of  the  Act  of  July 
27,  1892  (27  Stat.,  278)  ;  that  the  punishment  in  such  cases,  if  any, 
should  be  for  fraudulent  enlistment ;  that  the  Act  of  April  27,  1914, 
was  intended  to  secure  good  conduct  on  the  part  of  soldiers  in  the 
service,  and  not  for  the  purpose  of  penalizing  prior  misconduct,  and 
was  not  applicable  in  the  instant  case. 

(72-210,  J.  A.  G.,  Mar.  23,  1915.) 


DIGEST    OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       491 

PENALTY  ENVELOPES:  Furnishing  to  contractors  for  shipment  of  con- 
tract supplies. 

An  officer  of  the  Quartermaster  Corps  inquired  whether,  in  the 
purchase  of  small  articles  from  a  contractor  whose  obligation  was 
completed  as  soon  as  the  property  was  ready  for  shipment,  it  would 
be  permissible  to  furnish  the  contractor  with  penalty  envelopes  to  be 
used  in  forwarding  the  supplies  by  parcel  post.  It  was  pointed  out 
that  if  such  shipments  could  be  made  by  parcel  post  under  penalty 
envelopes,  it  would  result  in  a  considerable  saving  to  the  Govern- 
ment, it  having  been  the  custom  in  such  cases  to  send  the  contractor  a 
bill  of  lading  covering  the  shipment  at  Government  expense. 

Held,  that  section  3  of  the  Act  of  March  3,  1879  (20  Stat.,  352), 
providing  in  part  "  That  any  Department  or  officer  authorized  to  use 
the  penalty  envelopes  may  inclose  them  with  return  address  to  any 
person  or  persons  from  or  through  whom  official  information  is  de- 
sired, the  same  to  be  used  only  to  cover  such  information  and  in- 
dorsement relating  thereto,"  is  the  onlv  instance  of  specific  authority 
for  the  use  of  penalty  envelopes  by  private  persons,  and  that  accord- 
ing to  a  familiar  rule  of  construction,  it  is  to  be  taken  as  excluding 
their  similar  use  in  any  other  connection.    See  par.  837,  A.  R.  1913. 

(22-020,  J.  A.  G.,  Apr.  10,  1915.) 


POST  EXCHANGES:  Dividends. 

General  Order  No.  109,  W.  D.,  1911,  prescribes  the  method  of  dis- 
tribution of  net  profits  of  post  exchanges.  When  a  dividend  is  de- 
clared, the  fund  is  required  to  be  distributed  as  therein  directed,  and 
as  to  Engineers,  it  is  specified  :  "  Where  members  belong  to  the  Corps 
of  Engineers,  it  will  be  paid  to  the  Engineer  Band."  On  the  question 
whether  a  camp  exchange  at  Texas  City,  Tex.,  consisting  of  a  com- 
pany or  certain  companies  of  Engineers  was  within  the  scope  of  this 
regulation  and  required  to  pay  a  share  of  net  profits  to  the  Engineer 
Band  at  Washington  Barracks, 

Held,,  that  the  camp  exchange  was  not  a  regulation  post  exchange 
but  was  of  an  informal  character  created  to  meet  special  conditions 
where  the  advantages  of  a  regular  post  exchange  were  not  accessible ; 
that  as  exchanges  of  this  character  are  not  required  to  comply  with 
the  general  regulations  in  respect  to  their  organization  and  opera- 
tion, it  would  not  be  consistent  to  hold  that  they  are  within  the 
operation  of  the  provision  concerning  the  payment  of  dividends. 

(40-104.5,  J.  A.  G.,  Apr.  19,  1915.) 


TRANSFER:   Of  property  no  longer  needed  for  purpose  for  which  it  was 
purchased. 

It  was  proposed  to  transfer  to  the  Signal  Corps  in  Alaska  a  team 
of  dogs  belonging  to  the  Bureau  of  Fisheries,  Department  of  Com- 
merce, at  Copper  Center,  Alaska,  for  which  the  Bureau  of  Fisheries 
had  no  immediate  use.  On  the  question  whether  the  dogs  could  be 
subsisted  from  the  appropriation  for  "Eegular  Supplies,  Quarter- 
master Corps,"  which  in  terms  provides  for  the  subsistence  of  ani- 
mals "  of  the  Quartermaster  Corps." 


492        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

lleld^  that  it  being  well  settled  that  when  public  property  has 
ceased  to  be  of  use  for  the  specific  purpose  for  which  it  was  pur- 
chased, it  may  lawfully  be  loaned  or  transferred  to  some  other  bureau 
or  department  of  the  Government  where  it  can  be  utilized  in  the  pub- 
lic service,  such  transfer  not  being  regarded  as  in  conflict  with  Sec. 
3678,  Revised  Statutes  (Dig.  Op.  J.  A.  G.,  1912,  pp.  31-32),  the  ap- 
propriation for  "  Regular  Supplies,  Quartermaster  Corps "  should 
be  regarded  as  available  for  the  subsistence  of  the  dogs  so  trans- 
ferred, it  being  understood  that  the  dog  team  could  be  used  advan- 
tageously by  the  Signal  Corps  in  addition  to  the  teams  of  this  char- 
acter already  supplied  by  the  Quartermaster  Corps. 

(80-138;  5-243,  J.  A.  G.,  Apr.  27,  1915.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

( Digests  prepared  in  tlie  office  of  the  Judge  Advocate  General. ) 

COUIIT-MARTIAL  SENTENCES:  Scope  of  sentence  ferfeiting  pay;  extra 
duty  pay. 

A  forfeiture  of  20  days'  pay  was  imposed  upon  a  private  of  the 
Army  Service  Detachment,  U.  S.  Military  Academy,  by  a  summary 
court  martial.  Upon  the  question  whether  the  sentence  included 
extra  duty  pay  of  35  cents  a  day  as  laborer, 

Held^  that  extra  duty  pay  depends  entirely  upon  whether  or  not 
the  soldier  is  assigned  to  such  duty  as  gives  him  the  extra  duty  pay 
status ;  that  it  is  contingent  upon  an  assignment  by  order,  and  uncer- 
tain as  to  time;  that  the  sentence  of  the  court  martial  should  be 
absolute,  definite,  and  certain,  and  not  dependent  upon  any  con- 
tingency, and  that  it  should  be  presumed  that  the  pay  which  the  court- 
martial  had  in  mind  was  the  soldier's  monthly  pay,  as  fixed  by  laAv; 
that  while  the  allowance  per  day  for  the  performance  of  extra  duty 
is  designated  as  "  pay,"  it  is  nevertheless  in  the  nature  of  an  allow- 
ance {Sherburne  v.  United  States,  16  Ct.  Cls.,  491),  and  its  payment 
is  dependent  upon  the  contingency  of  assignment  to  duty  in  orders, 
etc.,  and  should  not,  therefore,  be  regarded  within  the  sentence  to 
forfeit  20  days'  pay  in  the  case  presented. 

(Comp.  Geo.  E.  Downey,  Jan.  20,  1915.) 

Under  authority  of  the  Act  of  September  27,  1890  (26  Stat.,  491), 
Avhich  provides  "  That  whenever  by  any  of  the  Articles  of  War  for 
the  govermnent  of  the  Army  the  punishment  on  conviction  of  any 
military  offense  is  left  to  the  discretion  of  the  court  martial  the 
punishment  therefor  shall  not,  in  time  of  peace,  be  in  excess  of  a  limit 
which  the  President  maj'^  prescribe,"  the  President,  by  the  existing 
Executive  Order  No.  2043,  of  September  5,  1914,  Article  II,  has  enu- 
merated the  several  military  offenses  for  which  a  maximum  limit  of 
punishment  is  prescribed,  with  the  character  of  the  punishment  stated. 
For  many  of  the  offenses,  the  punishment  prescribed  involves  for- 
feiture of  so  many  days'  pay,  or,  for  example,  under  the  20th  Article 
of  War,  for  the  offense  of  disrespect  to  a  commanding  officer,  the 
punishment  may  not  exceed  "  confinement  at  hard  labor  for  six 
months,  and  forfeiture  of  two-thirds  of  his  pay  per  month  for  a  like 
period." 


DIGEST    OF    OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       493 

.  On  the  questions  as  to  what  is  to  be  considered  as  "  pay  "  in  such 
cases, 

Held^  that  where  a  court-martial  sentence  directs  the  forfeiture  of 
pay  it  means  the  rate  of  compensation  as  specifically  fixed  by  law 
as  pay  proper,  and  does  not  refer  to  contingent  allowances,  extra 
duty  pay,  and  the  like ;  that  the  term  "  pay  per  month  "  used  in 
Executive  Order  No.  2043  means  the  monthly  rate  of  pay  fixed  by 
law  for  the  grade  in  the  service  of  the  convicted  person,  and  that  a 
forfeiture  of  one  day's  pay,  for  example,  requires  that  one-thirtieth 
of  the  monthly  rate  should  be  withheld.  Held  further^  that  where 
the  sentence  of  forfeiture  is  to  apply  to  future  pay,  and  the  rank  of 
the  soldier  is  changed  during  the  continuance  of  such  forfeiture 
period,  resulting  in  a  change  in  his  rate  of  pay,  there  should  be  a 
corresponding  change  in  the  amount  of  the  forfeiture. 

(Comp.  Geo.  E.  Downey,  Apr.  28,  1915.) 


HEAT  AND  LIGHT:   Commutation  thereof  commencing  July  1,  1915. 

A  provision  contained  in  the  Army  appropriation  act  for  the  fiscal 
year  1916  provides: 

"  For  commutation  of  quarters,  and  of  heat  and  light,  to  commis- 
sioned officers,  acting  dental  surgeons,  veterinarians,  pay  clerks, 
members  of  the  Nurse  Corps,  and  enlisted  men,  $640,000." 

Held^  that  this  provision  is  to  be  read  in  connection  with  the  exist- 
ing legislation  of  March  2,  1907  (34  Stat.,  1167),  providing  that  the 
heat  and  light  actually  iiecessary  for  the  authorized  allowance  of 
quarters  for  officers  and  enlisted  men  shall  be  furnished  at  public 
expense,  and  that  commutation  of  these  allowances  should  therefore 
be  in  accordance  with  the  commuted  value  thereof  as  determined  and 
set  forth,  as  to  heat,  in  par.  1036,  A.  R.,  1913,  as  amended  by  C.  A.  R. 
21,  Feb.  19,  1915 ;  and  as  to  light,  as  set  forth  in  the  following  table 
(subject  to  the  changes  indicated  in  Sec.  3,  par.  1057,  A.  R.,  1913, 
as  amended  by  C.  A.  R.  19,  Feb.  10,  1915,  for  stations  in  Alaska,  the 
tropics,  and  the  south  temperate  zone)  : 


1 

Rooms. 

April  to 

September, 

inclusive, 

value  per 

month. 

October  to 
March,  in- 
clusive, 
value  per 
month. 

Rooms. 

April  to 

September, 

inclusive, 

value  per 

month. 

October  to 
March,  in- 
clusive, 
value  per 
montn. 

10 

$3.24 
2.88 
2.70 
2.40 
1.98 

?5.16 
4.62 
4.32 
3.84 
3.18 

5 

$1.62 

1.44 

1.26 

.PO 

.72 

$2. 58 
2.28 
2.04 
1.44 
1.08 

9 

4 

8 

3  .     . 

7 

2 

6 

1    

(Comp.  Geo.  E.  Downey,  Apr.  28,  1915.) 

Note. — The  rates  indicated  are  for  the  commutation  of  heat  and 
light  for  the  fiscal  year  1916  for  the  number  of  rooms  actually  occu- 
pied, but  not  exceeding  the  authorized  allowance.  Voucher  forms 
therefor  are  under  consideration  by  the  Comptroller  and  will  be 
acted  upon  in  due  course. 


494       DIGEST   OF    OPINIOISrS   OF   THE    JUDGE   ADVOCATE   GENERAL. 

TRANSPORTATION:   Procuring   ticket   in   variance    with    transportation 
request. 

A  government  transportation  request  called  for  an  ordinary  pas- 
senger ticket  at  the  lowest  limited  rate  from  Los  Angeles,  CaL,  to 
Portola,  CaL,  which  rate  w^as  $26.45.  This  request  was  used  by  a 
government  employee  who  requested  the  railroad  agent  to  furnish  a 
ticket  reading  via  San  Francisco,  which  was  done,  and  the  railroad 
company  charged  $30.65  therefor,  the  regular  rate  for  the  longer 
route. 

Held^  that  the  Government  was  liable  only  for  the  payment  for 
the  service  which  the  transportation  request  called  for,  and  that  the 
employee  who  requested  the  agent  to  issue  the  ticket  by  a  longer 
route  should  be  required  to  pay  the  difference  to  the  railroad  com- 
pany. Held  further^  that  if,  in  any  case,  transportation  in  excess  of 
that  indicated  on  the  transportation  request  is  required  in  the  inter- 
ests of  the  Government,  the  traveler  should  pay  the  excess  cost  and 
present  a  claim  for  reimbursement. 

(Comp.  Geo.  E.  Downey,  Apr.  6,  1915.) 


TRANSPOBTATION:    Loss   of   ticket   procured   on   transportation   request; 
liability. 

The  Quartermaster  at  Boston,  Mass.,  issued  a  request  for  trans- 
portation by  a  certain  railroad  for  two  persons,  accepted  applicants 
for  enlistment,  from  Boston,  Mass.,  to  New  Rochelle,  N.  Y.,  a  re- 
cruiting depot.  The  request  was  duly  presented  and  two  first-class 
limited  tickets  were  issued  thereon.  One  of  the  men  used  his  ticket, 
but  the  other  reported  that  he  lost  his.  The  Auditor  disallowed  the 
railroad  company's  claim  for  the  value  of  the  lost  ticket.  The  com- 
pany contended  that  although  its  records  did  not  indicate  that  the 
ticket  had  been  used,  the  ticket  was  valid  for  the  use  of  the  holder 
at  any  time  and  may  have  been  used  for  but  a  portion  of  the  dis- 
tance, in  which  event  such  service  would  be  represented  only  by  the 
conductor's  cancellations,  and  would  not  appear  of  record. 

Held^  that  transportation  requests  are  used  by  the  United  States 
the  same  as  cash  in  procuring  transportation ;  that  the  railroad  com- 
pany having  issued  the  ticket  called  for  by  the  request,  the  legal 
presumption  was  that  the  company  furnished  the  service  and  such 
presumption  could  be  rebutted  and  claim  made  for  refund  only  by 
the  production  of  the  unused  ticket.  Held  further^  that  the  person 
to  whom  the  ticket  w^as  furnished  should  have  been  charged  with  the 
cost  thereof  at  the  time  and  that  the  amount  should  be  recovered 
from  him  if  possible. 

(Comp.  Geo.  E.  Downey,  Apr.  30,  1915.) 


DECISIONS  OF  THE  COURTS. 

(Digests  prepared  in  the  Office  of  the  Judge  Advocate  General.) 

HABEAS  CORPUS:  Fraudulent  enlistment  of  minor. 

A  woman  whose  son  fraudulently  enlisted  in  the  Army  by  falsely 
stating  that  he  was  over  21  years  of  age  instituted  habeas  corpus 


DIGEST   OF    OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL.       495 

proceedings  for  the  soldier's  discharge  on  the  ground  that  the  enlist- 
ment was  void  under  Sec.  1117,  Revised  Statutes,  which  provides: 

"  No  person  under  the  age  of  twenty-one  years  shall  be  enlisted 
or  mustered  into  the  military  service  of  the  United  States  without 
the  written  consent  of  his  parents  or  guardians:  Provided,  that  such 
minor  has  such  parents  or  guardians  entitled  to  his  custody  and 
control." 

After  the  service  of  the  writ  of  habeas  corpus,  but  before  the  hear- 
ing thereon  the  soldier  was  arrested  by  the  military  authorities  for 
fraudulent  enlistment  in  violation  of  the  62d  Article  of  War.  Sec- 
tion 761,  Revised  Statutes,  provides  relative  to  habeas  corpus  pro- 
ceedings that — 

"  The  court,  or  justice,  or  judge  shall  proceed  in  a  summary  way 
to  determine  the  facts  of  the  case,  by  hearing  the  testimony  and  argu- 
ments, and  thereupon  to  dispose  of  the  party  as  law  and  justice 
require. ''"' 

Held,  that  while  the  parent  or  guardian  who  had  not  consented 
to  the  minor's  enlistment  could  reclaim  the  custody  of  the  minor, 
yet,  in  view  of  Sec.  761,  Revised  Statutes,  it  was  deemed  that  law 
and  justice  did  not  require  that  he  be  taken  from  the  military  authori- 
ties until  he  had  made  amends  to  the  United  States  for  his  offense 
of  fraudulent  enlistment. 

{United  States  ex  rel.  Laikund  v.  Williford  (C.  C.  A.),  220  Fed., 
291.) 

ARMY  OFFICERS:  Promotion;  injunction  suit. 

The  act  of  April  1,  1890  (26  Stat.,  502),  requires  that  promotions 
to  every  grade  in  the  Army  below  the  rank  of  brigadier  general 
"  shall,  subject  to  the  examination  hereinafter  provided  for,  be  made 
according  to  seniority  in  the  next  lower  grade."  Plaintiff,  a  senior 
officer  in  the  grade  of  Major,  brought  suit  to  enjoin  the  Secretai-y 
of  War  "  from  taking  any  action  or  steps  of  whatsoever  kind  in 
violation  of  plaintiff's  right  to  be  nominated  by  the  President  of  the 
United  States  to  the  Senate  thereof  "  to  fill  a  vacancy  in  the  grade 
and  rank  of  Lieutenant  Colonel. 

Held,  that  no  duty  is  imposed  upon  the  Secretary  of  War  in  respect 
of  the  section  of  the  act  in  question,  which  relates  only  to  the  action 
of  the  President;  that  the  attempt  to  invoke  judicial  interference 
was  in  fact  an  attempt  to  reach  the  Executive  through  his  representa- 
tive, which  may  not  be  done ;  and  that  there  was,  therefore,  no  basis 
for  judicial  action. 

{Ray  V.  Garrison^  42  D.  C.  App.,  34.) 


BULLETIN  21. 

Bulletin  1  WAR  DEPARTMENT, 

j^Q,  21.     J  Washington,  June  16, 1915. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 

of  the  Army  for  the  month  of  May,  1915,  and  of  certain  decisions  of 

the  Comptroller  of  the  Treasury,  is  published  for  the  information 

of  the  service  in  general. 
[2255370  D— A.  G.  O.] 

By  order  of  the  Secretary  of  War  : 

H.  L.  SCOTT. 
Major  General,  Chief  of  Staff. 
Official  : 
H.  P.  McCAIN, 

The  Adjutant  General'. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

A  CORRECTION. 

On  page  4  of  Bulletin  18,  War  Department,  1915,  in  the  digest  of 
an  opinion  on  the  subject  "  Foreign  Service:  Limitation  as  to  service 
in  the  Philippines  and  Canal  Zone,"  the  date  October  15, 1914,  should 
be  October  1,  1915. 


CONTRACTS:  Defajilt  of  contractor;  liability  of  surety. 

In  due  course  after  aAvard  was  made  to  the  lowest  bidder  for  fur- 
nishing supplies  for  the  Army,  contract  was  forwarded  to  the  bidder 
for  execution,  who  about  the  same  time  went  into  bankruptcy  and 
turned  the  contract  papers  over  to  the  surety  company,  surety  for 
the  faithful  execution  and  performance  of  the  contract.  The  surety 
company  was  given  notice  and  afforded  an  opportunity  to  make 
satisfactory  arrangements  as  to  carrying  out  the  principal's  obliga- 
tion. No  action  having  been  taken  by  the  surety  company,  new  bids 
were  invited  resulting  in  an  award  to  the  lowest  bidder  at  an  advance 
aggregating  $957.87  over  the  first  award  and  $550  over  the  next 
lowest  bid  under  the  first  advertisement.  The  surety  company  of- 
fered $550  in  settlement  of  its  liability,  claiming  that  the  Govern- 
ment should  have  awarded  the  contract  to  the  next  lowest  bidder 
under  the  first  advertisement,  and  that  the  amount  offered  was  ac- 
cordingly the  amount  for  which  the  surety  was  only  liable 

Held,  that  the  acceptance  of  the  one  bid  in  the  first  instance  was  a 
rejection  of  all  other  bids;  that  the  other  bidders  were  thereby  re- 
lieved from  any  obligation  to  enter  into  a  contract;  and  that  the 

496 


DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       497 

surety  company  was  therefore  liable  to  the  Government  for  the  entire 
excess  cost  of  the  supplies  under  the  new  award,  amounting  to  $975.87, 
due  to  its  principal's  default. 
(76-222,  J.  A.  G.,  May  13,  1915.) 


CONTRACTS:  Procedure  on  default;  surety. 

A  contractor  for  furnishing  oats  for  the  Army  having  defaulted  in 
making  a  delivery,  a  supply  was  purchased  in  the  open  market  in 
accordance  with  the  terms  of  the  contract  at  a  cost  aggi'egating  over 
$500  in  excess  of  the  contract  price.  The  contracting  officer  advised 
the  Department  that  there  was  due  the  contractor  $87.03  for  oats 
delivered  on  a  previous  order,  and  he  requested  instructions  as  to 
whether  this  sum  should  be  paid  to  the  contractor  and  the  whole 
amount  of  excess  cost  of  procuring  oats  elsewhere,  due  to  this  and 
any  other  default,  collected  from  the  surety,  and  in  this  event  whether 
he  should  take  steps  to  make  the  collection. 

II eld ^  that  the  $87.03  referred  to  should  be  checked  into  the  Treas- 
ury by  the  contracting  officer  as  part  collection  of  the  amount  due  the 
Government  by  the  contractor,  this  being  justified  under  the  common 
right  of  set-off,  and  that  he  should  promptly  notify  both  the  con- 
tractor and  the  surety  of  the  default  and  the  amount  of  their  liability 
resulting  therefrom,  less  the  set-off  referred  to,  and  that  upon  their 
failure  to  make  prompt  settlement  the  matter  should  be  referred  to  the 
Solicitor  of  the  Treasury,  through  the  War  Department,  who  has 
charge  of  the  enforcement  of  bond  obligations. 

(76-742,  J.  A.  G.,  May  27,  1915.) 


COURT-MARTIAL  SENTENCE:  Detention  of  pay  in  lieu  of  forfeiture. 

The  question  was  presented  whether,  in  view  of  Section  2  of  Article 
III  of  the  Maximum  Punishment  Order,  which  provides  "  In  lieu 
of  forfeiture  of  pay  the  court  may,  at  its  discretion,  adjudge  deten- 
tion of  pay  at  the  rate  of  one  and  one-half  days'  pay  for  each  day  of 
pay  the  forfeiture  of  which  is  authorized;  but  no  sentence  shall  ad- 
judge the  detention  of  more  than  two-thirds  of  the  soldier'' s  pay  per 
month  for  three  months^''  the  detention  of  one-half  pay  per  month  for 
four  months  would  be  permissible,  this  being  as  to  amount  equivalent 
to  "  two-thirds  of  the  soldier's  pay  per  month  for  three  months." 

Held,  that  the  detention  being  in  lieu  of  forfeiture,  and  in  two- 
thirds  of  the  amount  authorized  by  statute,  the  limitation  of  the  Maxi- 
mum Punishment  Order  should  be  regarded  as  applying  to  the 
amount  rather  than  the  period ;  and  that,  therefore,  detention  of  one- 
half  pay  for  four  months  would  not  be  illegal. 

(30^83,  J.  A.  a,  May  17, 1915.) 


DESERTION:  Effect  of,  on  position  of  noncommissioned  officer. 

A  soldier  of  the  Quartermaster  Corps  who  had  been  dropped  as  a 
deserter  while  a  corporal,  surrendered  on  March  15,  1915,  and  was 
taken  up  by  the  Quartermaster  Corps  as  a  corporal.     The  question 

93668°— 17 32 


498       DIGEST    OF    OPINIOlSrS   OP   THE   JUDGE   ADVOCATE   GENERAL. 

as  to  whether  he  should  have  been  taken  up  as  a  corporal  was  sub- 
mitted, which  involved  a  consideration  of  the  effect  of  the  omission 
from  Par.  277,  A.  E.,  by  C.  A.  K.  15,  November  19,  1914,  of  the  sen- 
tence, "  The  desertion  of  a  noncommissioned  officer  vacates  his  posi- 
tion from  the  date  of  his  unauthorized  absence." 

Held,  that  it  was  intended  by  the  omission  of  this  sentence  in  the 
revision  of  Par.  277,  A.  R ,  to  abolish  the  provision  that  noncom- 
missioned officer  should  vacate  his  position  from  the  date  of  his  unau- 
thorized al^sence  and  to  require  that  his  reduction  should  be  accom- 
plished by  administrative  action,  and  that  this  interpretation  should 
be  placed  upon  the  paragraph  as  amended. 

(52-241,  J.  A.  G.,  May  19,  1915.) 


DETACHED  SERVICE:  Newly  appointed  commissioned  officers. 

Upon  the  question  as  to  the  legality,  under  the  detached  service  law 
(37  Stat.,  571),  of  assigning  newly  appointed  commissioned  officers 
of  field  artillery  for  a  preliminary  course  of  training  and  instruc- 
tion at  the  School  of  Fire  for  Field  Artillery,  Fort  Sill,  Okla.,  and 
attaching  them  to  the  instruction  or  other  batteries  on  duty  there. 

Held,  that  there  seemed  to  be  no  reason  why  such  a  newly  ap- 
pointed officer  may  not  be  assigned  or  attached  as  indicated,  pro- 
vided that  the  regular  complement  of  officers  of  such  organization 
is  not  thereby  exceeded,  and  that  the  officer  occupy  the  normal  duty 
status  with  the  battery;  nor  any  legal  objection  to  his  receiving  in- 
struction at  the  School  of  Fire  when  so  assigned  or  attached,  so  long 
as  such  instruction  does  not  impair  his  duty  status;  but  that  an  at- 
tachment for  the  purpose  of  taking  the  course  of  instruction  which 
is  inconsistent  with  the  normal  duty  status,  or  an  assignment  or  at- 
tachment of  officers  to  a  battery  in  excess  of  the  complement  author- 
ized by  law  would  be  a  violation  of  the  statute. 

(6-124,  J.  A.  G.,  May  5, 1915.) 


DETACHED  SERVICE:   Officer  on  garrison  duty  in  command  of  detacli- 

ment. 

A  battalion  of  the  14th  Infantry  having  been  ordered  to  garrison 
the  posts  in  Alaska,  and  Companies  A  and  C  of  that  regiment  having 
been  directed  to  take  station  at  Fort  Seward,  it  was  further  ordered 
that  one  officer  and  50  enlisted  men  of  those  companies  form  a  garri- 
son at  Fort  Liscum.  Accordingly,  a  lieutenant  of  Company  C  was 
sent  to  Fort  Liscum  with  25  men  of  his  own  company  and  25  men  of 
Company  A.    He  was  the  only  line  officer  at  Fort  Liscum. 

Held,  that  the  officer  occupied  a  normal  duty  status  with  the  de- 
tachment, and  that  as  the  25  men  of  his  own  company  whom  he 
commanded  were  not  separated  from  their  company  for  the  per- 
formance of  a  duty  different  from  the  normal  company  duty — the 
command  of  the  detachment  from  Company  A  being  additional  duty 
not  disturbing  his  relation  to  the  detachment  from  his  own  company 
(Bull.  22,  W-  D.  1914,  p.  25)— the  officer  should  be  regarded  as  on 
duty  with  his  company  as  required  by  the  detached  service  law  (37 
Stat.,  571). 

(6-124,  J.  A.  a,  May  19,  1915.) 


DIGEST   OF    OPTN"ION"S   OF   THE   JUDGE   ADVOCATE   GENERAL.       499 

EIGHT-HOXTIl  LAW :  Construction  of  dredge  for  Government  under  con- 
tract. 

The  question  was  submitted  for  opinion  as  to  whether  a  dredge 
being  constructed  by  u  contractor  under  a  contract  with  the  Govern- 
ment comes  within  the  term  "  public  works  "  as  used  in  the  8-hour 
law  restricting  the  employment  of  laborers  and  mechanics  upon 
"  public  works  "  to  8  hours  a  day  (27  Stat.,  340).  Until  the  promul- 
gation of  G.  O.  29,  Office  of  Chief  of  Engineers,  October  30,  1912, 
the  matter  of  construction  under  contract  of  vessels  of  the  United 
States  was  nOt  regarded  as  coming  within  the  term  "  public  works  " 
as  used  in  the  8-hour  law,  this  construction  being  in  accordance  with 
an  opinion  of  the  Attorney  General  (26  Op.  Atty.  Gen.,  30).  In 
that  order,  the  construction  was  changed,  in  view  of  a  Supreme  Court 
decision  (219  U.  S.,  24),  holding  that  a.  vessel  being  constructed  for 
the  United  States  was  a  "  puhlic  work  "  within  the  meaning  of  the 
statute  providing  for  the  protection  of  persons  supplying  labor  or 
materials  for  the  construction  of  or  repairs  upon  "  any  public  build- 
ing or  puhlic  work.'''' 

Held.,  that  the  statute  for  the  protection  of  labor  and  material 
men  used  a  broader  term  than  that  used  in  the  8-hour  statute;  that 
the  change  in  the  construction  of  the  statute  promulgated  in  the 
above-mentioned  order  was  not  warranted  by  the  Supreme  Court 
decision  cited  therein,  and  that  therefore,  following  the  opinion  of 
the  Attorney  General,  the  8-hour  law  should  be  regarded  as  having 
no  application  to  the  construction  of  the  dredge  in  question. 

(32-213,  J.  A.  a,  May  14,  1915.) 


FOREIGN  SERVICE :  Pay  clerks. 

Upon  the  question  whether  pay  clerks  come  within  the  following 
provision  of  the  Army  Appropriation  Act  approved  March  4,  1915. 

"  That  on  and  after  October  first,  nineteen  hundred  and  fifteen,  no 
officer  or  enlisted  man  of  the  Army  shall,  except  upon  his  own  re- 
quest, be  required  to  serve  in  a  single  tour  of  duty  for  more  than  two 
years  in  the  Philippine  Islands,  nor  more  than  three  years  in  the 
Panama  Canal  Zone,  except  in  case  of  insurrection  or  of  actual  or 
threatened  hostilities," 

Hetd^  that  pay  clerks  are  included  in  the  term  "officer  of  the 
Army,"  as  used  in  this  statute. 

(92-400,  J.  A.  G.,  May  4,  1915.) 


HEAT  AND  LIGHT:   Noncommissioned  officers   occupying  quarters  out- 
side of  post. 

Certain  noncommissioned  officers  above  grade  16  (Par.  9,  A.  R.), 
who  were  entitled  to  separate  quarters,  rented  and  occupied  quarters 
"  outside  of  camp "  by  permission  of  their  commanding  officer. 
Upon  the  question  whether  they  were  entitled  to  reimbursement  for 
the  usual  allowances  of  heat  and  light  under  such  conditions, 

Held,  that  if  there  were  quarters  available  for  these  men  at  the 
post  and  they  elected  to  rent  other  quarters  for  themselves  outside 
the  post  with  permission  of  their  commanding  officer,  they  should 
be  regarded  as  having  waived  their  right  to  heat  and  light  allow- 
ances. 

(72-414,  J.  A.  G.,  May  1,  1915.) 


500       DIGEST    or    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEEAL. 

HEAT  AND  LIGHT :  Pay  clerks. 

In  the  Army  Appropriation  Act  for  the  fiscal  year  commencing 
July  1,  1915,  pay  clerks  are  included  in  the  list  of  those  for  whom 
commutation  of  quarters  and  of  heat  and  light  is  provided  under 
"  Miscellaneous."  They  are  not  expressly  included,  however,  in  the 
list  of  officers  and  others  for  whom  heat  and  light  in  kind  are  pro- 
vided under  "  Eegidar  Supplies,"  the  statutory  provision  for  these 
allowances  in  kind  for  the  next  fiscal  year  being  in  terms  the  same 
as  for  several  years  past,  in  which  pay  clerks  have  been  held  not  to 
be  included  (Bui.  5,  W.  D.,  1915,  p.  5). 

Held,  therefore,  that  in  respect  of  such  allowances,  the  law  makes 
provision  only  for  commutation  of  heat  and  light  to  pay  clerks  which 
is  available  only  when  such  clerks  shall  be  on  a  commutation  status 
as  to  quarters,  and  that  no  provision  is  made  for  furnishing  them 
with  heat  and  light  in  kind. 

(6-134,  J.  A.  G.,  May  11,  1915.) 


PRISONERS:  Introducing  money  into  prison  room. 

In  a  report  on  the  inspection  of  the  Coast  Defenses  of  Chesapeake 
Bay,  in  August,  1914,  by  an  officer  of  the  Inspector  General's  De- 
partment, it  was  said: 

"  General  prisoners  attempting  to  introduce  money  into  prison 
I'oom  are  required  to  contribute  same  to  the  mess  fund,  and  such 
amounts  are  taken  up  and  appear  on  vouchers  to  the  fund.  (Par. 
327,  M.  G.  D.)." 

In  explanation  of  this  procedure,  the  commanding  officer  said: 

"  When  prisoners  are  first  confined  they  are  searched  and  personal 
effects  including  money  taken  away  from  them  and  returned  to 
them  upon  their  release.  If  a  prisoner  finds  money  and  upon  his 
return  to  the  guard  house  turns  over  the  money  to  the  prison  overseer 
this  also  is  credited  to  the  prisoner's  account.  But  when  a  prisoner 
in  some  way  secures  money  and  attempts  to  smuggle  same  into  guard 
house  or  concealing  same  in  some  part  of  his  clothing,  the  money  is 
confiscated  and  credited  to  prison  mess.  It  is  not  thought  that 
par.  327,  M.  G.  D.,  applies  to  this  case.     Decision  is  requested." 

Held^  that  the  practice  of  confiscating  money  which  general  prison- 
ers attempt  to  introduce  or  smuggle  into  the  prison  room  or  conceal 
in  their  clothing  is  not  warranted  by  law  or  regidations  and  should 
be  discontinued ;  that  money  so  confiscated  should  be  credited  to  the 
prisoners  from  whom  it  was  taken  and  returned  to  them  upon  their 
release  from  confinement ;  and  that  money  so  confiscated  from  prison- 
ers already  discharged  from  confinement  should  be  returned  to  them 
if  they  can  be  found. 

(30-824.3,  J.  A.  G.,  Mar.  3,  1915.) 


PTJRCHASE  OF  SUPPLIES:  Products  sold  by  civilian  employees. 

Paragraph  521,  A.  R.,  prohibits  the  purchase  of  government  sup- 
plies from  persons  in  the  military  service,  except  military  publica- 
tions and  maps  approved  by  the  War  Department,  or  the  making  of 
any  purchase  or  contract  in  which  such  person  shall  be  permitted  to 
share  or  receive  benefits. 


DIGEST   OF    OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       501 

Eeld^  that  this  provision  does  not  apply  to  civilian  employees  in 
the  government  service,  and  that  it  was,  therefore,  permissible  to 
purchase  from  a  clerk  in  the  Quartermaster  Corps  a  "  proprietary  " 
product  for  cleaning  shoes. 

(76-331.4,  J.  A.  G.,  May  12,  1915.) 


SALVAGE:  Rescue  of  drifting  submarine  mine. 

A  submarine  mine  belonging  to  the  United  States  broke  from  its 
moorings  and  was  found  and  rescued  by  fishermen.  On  the  ques- 
tion whether  the  fishermen  were  entitled  to  salvage, 

Held^  that  according  to  the  weight  of  authority,  only  such  property 
as  pertains  to  a  ship  or  its  cai-go  is  the  subject  of  salvage,  and  that 
therefore  the  rescuers  of  the  submarine  mine  could  not  properly  be 
paid  for  their  services  upon  a  claim  for  salvage. 

(5-400,  J.  A.  G.,  May  4,  1915.) 


TRANSPORT  SURGEONS:  Subsistence  at  public  expense. 

An  officer  of  the  Medical  Corps  claimed  reimbursement  for  sub- 
sistence during  a  period  that  he  was  on  duty  as  surgeon  on  an  Army 
Transport,  such  claim  being  based  upon  the  provision  of  Par.  164, 
Transport  Regulations,  for  the  subsistence  of  "contract  surgeons 
(serving  as  transport  surgeons);  the  sliip's  officers;  *  *  *  in 
their  respective  messes  without  charge." 

Held:,  that  there  is  no  statutory  authority  for  the  provision  in  the 
Transport  Regulations  referred  to  for  the  subsistence  without  charge 
of  contract  surgeons  serving  as  transport  surgeons,  or  of  any  com- 
missioned officer  of  the  Medical  Corps  serving  as  transport  surgeon, 
and  that  therefore  the  officer  was  not  entitled  to  the  reimburtjement 
claimed. 

(94-100,  J.  A.  G.,  May  8,  1915.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 
(Digests  prepared  in  tlie  office  of  the  Judge  Advocate  General.) 

CLAIMS:  Loss  of  vehicle  hired  by  Government  employee. 

An  officer  of  the  Indian  Service,  Department  of  the  Interior,  under 
instructions  to  visit  a  certain  Indian  Reservation  for  inspection  pur- 
poses, hired  a  team  of  two  horses  and  buggy  to  make  the  trip  across 
country.  In  his  return  from  the  reservation,  in  attempting  to  ford  a 
river  after  heavy  rains,  the  team  was  swept  down  stream,  resulting 
in  the  loss  of  the  buggy,  the  horses  being  saved.  There  was  no  ques- 
tion that  the  officer  did  not  exercise  reasonable  care  and  judgment  in 
attempting  to  cross  the  stream.  He  considered  that  the  interests  of 
the  Government  required  that  he  make  the  attempt.  The  owner  of 
the  buggy  put  in  a  claim  against  the  Government  for  $74  damages. 

Held^  that  the  officer  was  in  a  travel  status,  and  was  entitled  to 
reimbursement  of  his  actual  traveling  expenses  under  the  act  of 
March  3,  1875    (18  Stat.,  452),  excepting  subsistence;  that  he  was 


502        DIGEST    OF    OPINTOlSrS   OF    THE   JUDGE   ADVOCATE   GENERAL. 

not  authorized  to  hire  the  team  for  the  Government  as  its  agent  and 
presumably  did  not  attempt  to  do  so;  that  the  Government  had  no 
part  in  the  contract  of  hire,  and  there  was  no  privity  of  contract 
between  the  United  States  and  the  claimant,  and  that  therefore  the 
claim  was  not  a  valid  one  against  the  United  States. 
(Comp.  Geo.  E.  Downey,  May  26,  1915.) 


PAY:  Foreign  service  increase  to  officers  and  enlisted  men. 

The  Act  of  June  30,  1902  (32  Stat.,  312),  provides— 

"That  hereafter  the  pay  proper  of  all  commissioned  officers  and 
enlisted  men  serving  beyond  the  limits  of  the  States  comprising  the 
Union  and  the  Territories  of  the  United  States  contiguous  thereto 
shall  be  increased  ten  per  centum  for  officers  and  twenty  per  centum 
for  enlisted  men  over  and  above  the  rates  of  pay  proper  as  fixed  by 
law  for  time  of  peace,  and  the  time  of  such  service  shall  be  counted 
from  the  date  of  departure  from  said  States  to  the  date  of  return 
tliGrGto 

This  act  was  modified  by  the  Act  of  August  24,  1912  (37  Stat., 
576),  which  provides — 

"  That  hereafter  the  laws  allowing  increase  of  pay  to  officers  and 
enlisted  men  for  foreign  service  shall  not  apply  to  service  in  the 
Canal  Zone,  Panama,  or  Hawaii  or  Porto  Eico." 

The  question  was  presented  as  to  what  items  of  pay  are  subject 
to  increase  for  foreign  service.  Held,,  that  when  Congress  by  the 
Act  of  June  30,  1902,  supra,  qualified  the  word  "  pay  "  by  the  word 
"  proper  "  it  intended  some  restriction  upon  the  broad  interpretation 
of  the  word  "  pay  "  which  might  otherwise  have  been  permissible, 
and  that  neither  the  law  nor  the  construction  thereof  by  the  Supreme 
Court  in  United  States  v.  Mills  (197  U.  S.,  223),  justifies  the  view 
that  the  increase  is  payable  on  additional  or  extra  pay  for  special 
assignments  or  temporary  service  or  on  items  which  are  more  prop- 
erly "  allowances  "  than  pay.  Decided.^  therefore,  that  foreign  service 
increase  of  pay  is  not  allowable  on  the  following  items, — 

(a)  Officers. 

1.  Additional  pay  for  private  mounts. 

2.  Additional  pay  as  aid. 

3.  35%  increase,  aviation  service,  Act  of  March  3,  1913. 

4.  25%,  50%  and  75%  increase,  aviation  service,  act  of  July  18. 

1914. 

(b)  Enlisted  men. 

1.  Additional  pay  as  expert  rifleman,  sharpshooter,  and  marks- 

man. 

2.  Additional  pay  as  first  class  and  second  class  gimner. 

3.  Additional  pay  as  casemate  electrician,  obser\^er,  first  class, 

plotter,  chief  planter,  chief  loader,  observer,  second  class, 
gun  commander,  gun  pointer. 

4.  Additional  pay  as  mess  sergeant. 

5.  50%  increase,  aviation  service.  Act  July  18,  1914,  except 

"  aviation  mechanicians." 
This  decision  will  have  application  to  all  service  rendered  after 
June  30,  1915,  the  postponement  of  the  operation  thereof  being 


DIGEST   OF   OPINION'S  OF   THE   JUDGE  ADVOCATE   GENERAL.       503 

deemed  necessary  to  permit  due  notice  being  given  disbursing  officers 
SO  as  to  avoid  possible  occasions  for  disallowances. 

(Comp.  Geo.  E.  Downey,  May  19,  1915  (21  Comp.,  811),  as  ampli- 
fied by  decisions  of  June  4  and  June  10,  1915.) 

Note. — The  effect  of  the  above  decision  is  to  limit  the  payment  of 
foreign-service  increase  of  pay  to  pay  plus  longevity  or  service  pay, 
including  additional  pay  for  certificate  of  merit,  and  the  50  per  cent 
increase  granted  to  enlisted  men  by  the  Act  of  Jidy  18,  1914,  Avho 
hold  the  rating  of  "  aviator  mechanician,"  and  to  exclude  from  the 
computation  of  said  increase  all  additional  items  of  pay.  All  deci- 
sions in  conflict  therewith  are  overruled. 


TRANSPORT ATIOF:  Shipment  of  horses  on  change  of  station. 

An  officer  on  change  of  station  had  household  goods  and  pro- 
fessional books  aggregating  9,078  pounds,  the  shipment  of  wliich 
by  the  Government  was  more  advantageous  as  a  minimum  car  load 
of  12,000  pounds  at  $60.  The  officer  also  had  two  horses  for  ship- 
ment at  public  expense  under  Par.  1098,  A.  R.,  1913,  which  could  have 
been  shipped  in  the  car  with  the  other  property  without  additional 
cost  to  the  Government  for  freight  charges,  provided  they  had  been 
shipped  at  the  normal  valuation  of  not  more  than  $100.  Par.  1098, 
A.  R.,  contained  the  provision — 

"  That  the  shipment  shall  be  made  at  a  valuation  of  not  to  exceed 
$100  per  animal,  unless  the  owner  pays,  under  the  regulations  of  the 
Quartermaster  Corps,  the  cost  incident  to  increased  valuation." 

The  officer  placed  a  valuation  of  $200  each  on  the  horses,  as  a 
consequence  of  which,  because  of  the  higher  rate  of  classification,  it 
was  necessary  to  ship  them  in  a  separate  car  at  a  cost  of  $75,  but 
upon  the  same  Government  bill  of  lading  with  the  household  goods 
and  books. 

Ileld^  that  as  the  cost  over  and  above  $60  on  account  of  this 
shipment  was  due  to  the  action  of  the  officer  (owner),  he,  and  not 
the  Government,  should  bear  the  burden  of  it. 

(Comp.  Geo.  E.  Downey,  May  4,  1915.) 


BULLETIN  26. 

Bulletin  1  WAK  DEPARTMENT, 

No.  26.     J  Washington,  July  16,  1915. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  June,  1915,  and  of  certain  decisions  of 
the  Comptroller  of  the  Treasury,  is  published  for  the  information  of 
the  service  in  general. 

[2255370  E— A.  G.  O.] 

By  order  or  the  Secretary  or  War: 

H.  L.  SCOTT, 
Major  General,  Chief  of  Staff. 
Official  : 

H.  P.  McCAIN, 

The  Adjutant  General. 


OPIinONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 
DETACHED  SEHVICE:  Commanding  of  company  by  battalion  adjutant. 

The  question  was  presented  wdiether  a  battalion  adjutant  can  ac- 
cumulate eligibility  for  detached  service  by  commanding  a  company, 
and,  if  so,  whether  he  can  at  the  same  time  draw  forage  for  his  horse. 
By  the  Act  of  February  2,  1901  (31  Stat,  750),  it  is  provided  that 
captains  and  lieutenants  not  required  for  duty  with  the  companies 
shall  be  available  for  detail  as  regimental  and  battalion  staff  officers 
and  such  other  details  as  may  be  authorized  by  law. 

Held,  that  so  long  as  an  officer  remains  battalion  adjutant  his  pri- 
mary duties  pertain  to  that  office,  with  which  the  normal  duties  of 
company  commander  are  incompatible;  that  the  detached  service  law 
would  require  that  his  primary  duty  be  with  his  company ;  that  if  he 
were  required  to  perform  all  the  duties  of  company  commander  he 
could  not  perform  those  mounted  duties  of  battalion  adjutant  for 
which  the  law  provides  forage  and  mounted  pay,  and  in  such  circum- 
stance he  would  not  be  entitled  thereto;  that  if  he  performed  such 
duties  of  a  company  commander  as  were  not  incompatible  with  those 
of  battalion  adjutant,  he  would  not  be  entitled  to  accumulate  eligi- 
bility for  detached  service  by  reason  of  such  duty  as  a  company  com- 
mander. 

(72-350,  J.  A.  G.,  June  15,  1915.) 


DETACHED  SERVICE:  Detail  of  a  major  of  infantry  as  captain  of  infantry 
team,  national  matches. 

The  Act  of  April  27,  1914  (38  Stat.,  357) ,  forbids  the  detachment 
for  duty  of  any  kind  of  any  colonel,  lieutenant  colonel,  or  major  of 
the  line  who  has  not  been  actually  present  for  duty  for  at  least  two 

504 


DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       505 

of  the  last  preceding  six  years  with  a  command  composed  of  not  less 
than  two  troops,  batteries  or  companies  of  that  branch  of  the  Army 
in  which  he  holds  a  commission,  and  provides: 

"  That  temporary  duty  of  any  kind  hereafter  performed  with 
United  States  troops  in  the  field  for  a  period  or  periods  the  aggregate 
of  which  shall  not  exceed  sixty  days  in  any  one  calendar  year 
*  *  *  shall  *  *  *  hereafter  be  counted  as  actual  presence 
for  duty  with  such  organization  or  command." 

On  the  question  whether  a  major  of  infantry  who  was  not  eligible 
for  detached  service  could  legally  be  detailed  as  captain  of  the  in- 
fantry team  for  the  national  matches  at  Jacksonville,  Fla.,  during 
October,  1915,  w^hich  AA'ould  necessitate  his  detachment  for  about  50 
days, 

Held.,  that  the  training  of  an  infantry  rifle  team  does  not  come 
within  the  definition  of  duty  with  troops  in  the  field  contemplated 
by  the  statute,  but  is  more  nearly  allied  to  garrison  instruction;  that 
it  is  field  service  only  in  the  sense  that  the  duty  is  performed  out  of 
doors  and  involves  the  use  of  arms,  being  similar  to  training  in  rifle 
fire  upon  a  range,  an  adjunct  to  a  post,  which  service  is  not  regarded 
as  "  field  service  " ;  that  therefore  the  proposed  assignment  could  not 
be  counted  as  duty  with  troops  within  the  meaning  of  the  Act  of 
April  27,  1914. 

(6-124,  J.  A.  G.,  June  5,  1915.) 


LINE  OF  DUTY:  Soldier  stabbed  to  death,  in  altercation  in  which  he  was 
the  aggressor. 

Following  a  dispute  between  a  corporal  and  a  private,  between 
whom  there  had  been  ill  feeling  for  some  time,  the  former,  after  call- 
ing the  private  a  vile  name,  threw  a  bucket  of  water  upon  him, 
whereupon  the  private  stabbed  his  assailant  with  a  case  knife,  kill- 
ing him. 

Field,  that  as  the  corporal's  death  was  the  result  of  an  altercation 
in  which  he  was  the  aggressor  and  therefore  guilty  of  an  infraction 
of  military  discipline,  his  death  should  be  regarded  as  having  oc- 
curred as  the  result  of  his  own  misconduct  and  not  in  line  of  dutv. 

(54-022.1,  J.  A.  G.,  June  30,  1915.) 


MEDICAL  TREATMENT:  Expenses  for  services  of  osteopathic  physician. 

An  officer  of  the  Army  on  duty  without  troops  incurred  an  expense 
of  $20  for  osteopathic  treatment  and  submitted  vouchers  for  pay- 
ment of  the  account,  assuming  that  his  procedure  was  authorized  by 
Par.  1476,  A.  R.,  which  provides  in  part  that  when  "  medical  treat- 
ment "  is  required  by  an  officer  on  duty  without  troops  and  it  can  not 
otherwise  be  had,  he  may  "  employ  the  necessary  civilian  service  to 
furnish  the  same,  and  just  accounts  therefor  will  be  paid  by  the 
Medical  Department." 

Held^  that  osteopathic  treatment  is  not  "  medical  treatment "  with- 
in the  meaning  of  the  regulation;  that  as  the  Medical  Department 
does  not  provide  for  osteopathic  treatment  through  its  own  organiza- 
tion, it  is  not  to  be  presumed  that  the  regulation  is  susceptible  of  an 


506       DIGEST   OF    OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL. 

interpretation  that  will  authorize  it;  that  with  the  sanction  of  Con- 
gress, the  Medical  Department  of  the  Army  adheres  to  the  ancient 
school  of  medicine  and  surgery ;  and  that  therefore  all  persons  in  the 
Army  service  who  require  the  services  of  a  civilian  physician  at  pub- 
lic expense  are  limited  to  the  procurement  of  a  physician  whose 
methods  of  treatment  are  properly  termed  the  practice  of  medicine 
and  surgerv. 

(6-227.6,"^  J.  A.  G.,  June  16,  1915.) 


PAY  AND  ALLOWANCES:  Forage  allowance  to  retired  officers  assigned 
to  active  duty. 

A  retired  officer  of  the  Army  was  detailed,  with  his  consent,  on 
active  duty  in  the  Army  War  College  as  translator,  and  the  ques- 
tion was  presented  whether  he  was  entitled  to  forage  for  his  private 
mount  while  on  such  duty.  By  the  Acts  of  June  17,  1878  (20  Stat.. 
150),  and  February  24,  1881  (21  Stat,  347),  forage  allowance  is 
given  to  officers  who  "  are  required  by  law  to  be  mounted  and  actu- 
ally keep  and  own  their  animals." 

Held^  that  as  the  law  does  not  indicate  what  officers  are  "  required 
to  be  mounted,"  it  rests  with  the  Secretary  of  War  to  designate  them ; 
that  forage  for  private  horses  is  not  a  part  of  the  allowances  to 
which  an  officer  is  entitled  irrespective  of  the  duty  to  which  he  is 
assigned ;  that  the  allowance  for  forage  is  not  a  part  of  the  "  full 
pay  and  allowances  "  of  a  retired  officer  and  that  he  is  not  entitled 
thereto  unless  it  has  been  decided  by  the  Secretary  of  War  that  he  is 
performing  duty  which  requires  him  to  be  mounted  or  is  employed 
in  one  of  the  capacities  mentioned  in  Paagraj)h  1272  A.  R. 

(88-570,  J.  A.  G.,  June  29,  1915.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

GBATUITY  PAY:  On  death  of  soldier,  designation  of  beneficiary. 

An  enlisted  man  who  had  duly  designated  a  friend  as  beneficiary 
to  whom  payment  should  be  made  of  the  six  months'  gratuity  pay 
provided  by  the  Act  of  May  11,  1908  (35  Stat.,  108),  and  Par.'  1385, 
A.  R.,  subsequently  married,  but  did  not  thereafter  change  the  desig- 
nation of  his  beneficiary  "by  filling  up  and  forwarding  to  The 
Adjutant  General  of  the  Army  another  blank  of  the  prescribed 
form,"  m  accordance  with  Par.  1385,  A.  R.  The  soldier,  while  on  the 
active  list,  died,  leaving  a  will  bv  which,  after  making  certain  spe- 
cific bequests,  he  disposed  of  "all  the  balance  of  my  estate  both 
personal  and  real,  and  all  debts  or  monev  that  is  due  me  from  any 
source  "  to  his  wife  and  another  person. 

Held,  t\vAi  the  will  did  not  operate  to  change  the  designation  of 
the  soldier's  beneficiary. 

(Comp.  Geo.  E.  Downey,  June  7,  1915.) 


DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       507 

STATE  LAWS:  Expenses  for  inspection  of  horses. 

In  carrying  out  instructions  of  the  Quartermaster  General  of 
January  9,  1912,  in  regard  to  complying  with  State  sanitary  require- 
ments governing  the  admission  of  live  stock,  the  proper  military 
authorities  deemed  it  necessary  in  connection  with  the  shipment  of 
horses  and  mules  from  Vancouver  Barracks,  Wash.,  to  points  in  Cali- 
fornia to  engage  the  services  of  a  veterinarian  at  Vancouver  to  in- 
spect the  animals  and  issue  health  certificates  therefor.  The  Auditor 
for  the  War  Department  disallowed  the  pa3^ment  to  the  veterinarian 
under  the  supposed  authority  of  previous  decisions  of  the  Comp- 
troller (21  Comp.  Dec,  450,  and  others  there  cited),  holding  in  sub- 
stance that  the  instrumentalities  of  the  United  States  employed  in 
its  proper  functions  are  not  subject  to  taxation  by  a  State  and  that 
the  requirement  of  the  State  law  of  the  evidence  of  the  inspection  of 
horses  "  does  not  make  it  the  carrier's  duty  to  make  or  procure  the 
inspection  of  Government  horses  en  route." 

Held^  that  where  the  Government  acquiesces  in  the  requirements 
of  State  laws  in  this  regard  and  makes  its  own  arrangements  for 
inspection,  as  was  done  in  the  instant  case,  the  expense  therefor  is 
properly  payable  from  Army  appropriations,  and  that  the  decisions 
relied  upon  by  the  Auditor  were  not  applicable. 

(Comp.  Geo.  E.  Downey,  June  12,  1915.) 


TEANSPORTATION:  Land-grant  deductions  for  civilian  employees. 

In  the  settlement  of  the  accounts  of  the  Atchison,  Topeka  &  Santa 
Fe  Railway  Company  for  transportation  service,  the  Auditor  for  the 
War  Department  disallowed  $36.58  as  land-grant  deductions  from 
claim  for  the  transportation  of  two  civilian  employees  of  the  Signal 
Corps  from  San  Diego,  Cal.,  to  Washington,  D.  C.  On  appeal  to  the 
Comptroller,  the  company  contended  that — 

"  Civilian  employees  of  this  branch  of  the  Army  are  not  a  part 
of  the  military  forces  of  the  United  States  subject  to  the  orders  of 
the  Secretary  of  War,  and  can  in  no  way  be  classed  as  troops  of  the 
United  States,  under  the  meaning  of  the  land-grant  acts.  Such 
transportation  is  therefore  not  subject  to  land-grant  deduction." 

Held,  that  by  the  Act  of  February  2,  1901  (31  Stat.,  748),  the 
Signal  Corps  became  a  part  of  the  Army ;  that  it  has  been  held  for 
more  than  thirty  years  that  the  civilian  employees  of  the  Army  are 
troops  within  the  meaning  of  the  land-grant  acts,  and  that  therefore 
the  deduction  was  properly  made  by  the  Auditor. 

(Comp.  Geo.  E.  Downey,  June  24,  1915.) 


BULLETIN  30. 

BuTXETiN  I  WAE  DEPARTMENT, 

No.  30.     j  Washington,  August  20,  1915. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  July,  1915,  and  of  certain  decisions  of 
the  Comptroller  of  the  Treasury,  is  published  for  the  information 
of  the  service  in  general. 
[2255370  F— A.  G.  O.] 

By  ORDER  or  the  Secretary  of  War  : 

TASKER  H.  BLISS, 

Brigadier  General,  Acting  Chief  of  Staff. 
Official  : 

H.  P.  McCAIN, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ACCOUNTS:   Disposition  of  certified  checks  received  as  guaranties. 

In  the  Comptroller's  decisions  of  January  16,  1913  (19  Comp. 
Dec,  442),  and  January  9,  1914  (20  Comp.  Dec,  479),  it  was  held 
in  substance  that  all  moneys  collected  by  disbursing  or  collecting 
officers  of  which  the  correct  amount  due  the  Government  could  not 
be  determined  at  the  time  of  receipt,  and  refundment  is  involved, 
or  moneys  held  in  trust  by  an  officer  as  agent  of  the  Government 
and  not  otherwise  provided  for  by  law  or  Treasuiy  regulations,  to 
be  subsequently  returned  in  whole  or  in  part  to  the  depositor,  should 
be  accounted  for  to  the  Auditor  as  a  special  deposit  account. 

Held,  that  the  said  decisions  of  the  Comptroller  do  not  require 
that  certified  checks  accompanying  proposals  be  deposited  to  the 
credit  of  the  Treasurer  of  the  United  States,  since  such  checks  do  not 
represent  money  belonging  to  the  United  States,  but  are  merely  a 
form  of  guaranty  which  the  contracting  officer  may  retain  in  his 
})ossession  until  the  proper  time  to  return  them  to  the  depositors  or 
until  collection  is  required  in  case  of  the  successful  bidder  upon 
default — this  being  the  practice  authorized  by  paragraph  535,  A.  R., 

(12-124,  J.  A.  G.,  July  28,  1915.) 


DESERTION:  Effect  of  disapproval  of  court-martial  sentence  as  to  expenses 
for  reward  and  transportation. 

An  enlisted  man  upon  trial  for  desertion  was  found  guilty,  but  the 
reviewing   authority   disapproved   the   sentence   because   no   proper 
evidence  was  introduced  to  show  the  time  and  place  of  apprehension. 
508 


DIGEST    OF    OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL.       509 

Held,  that  the  soldier  was  entitled  to  reimbursement  of  the  amount 
stopped  against  his  pay  for  payment  of  the  reward  for  his  appre- 
hension (127  A.  R.,  1913),  but  that  he  was  properly  chargeable  with 
the  cost  of  his  transportation  from  the  place  of  his  trial  to  the  sta- 
tion of  his  organization,  which  station  had  been  changed  during  his 
unauthorized  absence,  the  travel  incident  to  the  charge  of  desertion 
and  for  which  the  soldier  was  not  liable  (127  A.  R.,  1913),  having 
ended  at  the  place  of  his  trial,  regardless  of  whether  this  was  his 
proper  station  or  elsewhere. 

(26-206,  J.  A.  G.,  July  24,  1915.) 


HEAT    AND    LIGHT    COMMUTATION:    Allowances    when    quarters    are 
rented  at  officer's  own  expense. 

In  the  Army  appropriation  act  for  the  fiscal  year  1916,  provision 
was  made  for  commutation  of  heat  and  light  for  officers  and  enlisted 
men,  and  the  Act  of  March  2,  1907  (34  Stat.,  1167),  provides  that 
their  heat  and  light  allowances  shall  be  furnished  under  regulations 
prescribed  by  the  Secretary  of  War. 

Held,  that  under  the  regulations  prescribed  (Par.  1036  and  Par. 
1057,  A.  P.,  1913,  as  amended),  officers  and  enlisted  men  on  tem- 
porary duty  on  the  Mexican  border  who  occupy  with  their  families 
quarters  rented  at  their  own  expense  are  entitled  to  their  regular 
allowances  of  commutation  of  heat  and  light  therefor. 

(72-313,  J.  A.  G.,  July  16,  1915.) 


MILITIA:   Injury  to  laborer  on  rifle  range;  liability. 

A  laborer  employed  on  a  militia  rifle  range  was  injured  in  the 
course  of  his  employment  and  the  question  was  presented,  in  connec- 
tion with  his  claim  for  an  award  of  compensation,  as  to  whether  he 
was  an  employee  of  the  State  or  of  the  Federal  Government. 

Field,  that  while  laborers  employed  on  militia  rifle  ranges  are  paid 
from  federal  appropriations  (R.  S.,  1661,  as  amended),  and  by  a  dis- 
bursing officer  of  the  United  States  (32  Stat.,  777),  they  are  neverthe- 
less selected,  hired  and  discharged  by  the  State,  thus  evidencing  such, 
plenary  control  over  them  as  to  bring  them  within  the  relation  of 
master  and  servant,  employer  and  employee,  and  that  therefore  the 
laborer  was  to  be  regarded  as  an  employee  of  the  State,  rather  than 
of  the  Federal  Government. 

(16-600,  J.  A.  G.,  July  20,  1915.) 

MARINE  CORPS:  Convicted  enlisted  man  in  Army  service,  allowances  on 
discharge. 

An  enlisted  man  of  the  Marine  Corps  during  the  service  of  his 
organization  with  the  Army  was  sentenced  to  dishonorable  discharge 
and  imprisonment  by  an  Army  court-martial.  At  the  expiration  of 
his  term  of  imprisonment  the  question  was  presented  as  to  whether 
he  was  entitled  to  transportation  and  the  usual  gratuities  of  clothing 
and  cash  payable  from  Army  appropriations. 

Held,  that  the  provisions  of  the  Army  appropriation  act  in  regard 
to  transportation,  clothing  and  cash  for  discharged  prisoners  are 
sufficiently  broad  therefor,  and  that  as  the  law  does  not  provide  for 


510        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

the  return  of  prisoners  of  the  Marine  Corps  convicted  by  an  Army 
court-martial  while  serving  with  the  Army  under  Section  1621, 
E.  S.,  to  the  jurisdiction  of  the  Navy  Department  where  they  nor- 
mally belong,  they  remain  under  the  jurisdiction  of  the  War  Depart- 
ment for  all  purposes  of  punishment  and  discharge  the  same  as 
similarly  convicted  enlisted  men  of  the  Army,  including  the  allow- 
ance of  transportation,  clothing  and  cash  upon  discharge. 
(30-824.1,  J.  A.  G.,  July  3,  f915.) 


OFFICERS:  Restoration  of,  from  retired  list  to  active  list. 

In  respect  to  an  officer  who  was  restored  to  the  active  list  from  the 
retired  list  by  the  Act  of  July  17,  1914  (38  Stat.,  512),  the  question 
was  presented  upon  his  restoration  to  his  former  rank  under  the  Act 
of  March  4,  1915  (38  Stat.,  1068),  as  to  whether  he  should  be  carried 
as  an  extra  officer.  The  Act  of  March  4,  1915,  referred  to,  authorizing 
the  President  under  specified  conditions  to  transfer  officers  from  the 
retired  list  to  the  active  list,  contained  the  provision : 

"  That  such  officer  shall  be  transferred  to  the  place  on  the  active  list 
which  he  would  have  had  if  he  had  not  been  retired,  and  shall  be  car- 
ried as  an  additional  number  in  the  grade  to  which  he  may  be  trans- 
ferred or  at  any  time  thereafter  promoted :  *  *  *  Provided  fur- 
ther, That  any  officer  who  may  have  already  been  transferred  from 
the  retired  list  to  the  active  list  shall  receive  the  benefits  of  this  act." 

Held,  that  the  provision  that  officers  restored  under  the  Act  of 
March  4,  1915,  shall  be  carried  as  additional  numbers,  indicates  an 
intention  on  the  part  of  Congress  to  bring  about  the  restoration  of 
such  officers  to  their  former  rank  without  interfering  with  the  rights 
of  promotion  that  had  accrued  to  officers  who  had  remained  in  the 
service,  and  that  while  the  Act  does  not  expressly  provide  that  an 
officer  theretofore  restored  should  be  carried  as  an  additional  number, 
it  evidently  was  the  intention  of  Congress  that  it  should  have  that 

(88-260,  J.  A.  G.,  July  8,  1915.) 


TRANSPORT  SERVICE:  Stowaways. 

A  citizen  of  Honolulu,  H.  T.,  presented  a  bill  for  $3.30  for  subsist- 
ence furnished  to  three  stowaways  taken  oiT  the  United  States  trans- 
port at  Honolulu. 

Held,  that  the  bill  was  properly  payable  from  the  appropriation 
for  the  subsistence  of  the  Quartermaster  Corps. 

(94-130,  J.  A.  G.,  July  17,  1915.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 
CONTRACTS:  Belay  in  making  award. 

The  Navy  Department  advertised  for  proposals  for  furnishing, 
among  other  things,  1,000  rolls  of  toilet  paper  to  the  Naval  Academy, 
the  bids  to  be  opened  June  23, 1914.  The  Old  Dominion  Paper  Com- 
pany submitted  a  proposal  to  furnish  and  deliver  within  thirty  days 


DIGEST   OF    OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       511 

of  the  date  of  an  order  the  required  paper  at  a  given  price.  Awards 
were  generally  made  within  a  few  days  after  the  opening  of  the  bids 
but  no  award  was  made  for  the  toilet  paper  until  September  10,  1911, 
when  the  Old  Dominion  Paper  Company  was  advised  that  its  bid 
was  accepted  and  an  order  was  given  for  the  paper.  In  the  meantime 
conditions  in  the  paper  market  had  radically  changed  and  the  paper 
company  refused  to  furnish  the  paper  in  accordance  with  its  bid. 
Thereupon  the  paper  was  purchased  elsewhere  at  a  higher  price. 

Held^  that  the  department's  delay  in  making  the  award  was  un- 
reasonably long  in  view  of  its  usual  practice;  that  it  is  well  settled 
law  that  where  no  time  is  fixed  within  which  an  offer  is  to  be  accepted 
it  will  lapse  after  the  expiration  of  a  reasonable  time ;  and  that  there- 
fore the  compan}^  was  not  liable  for  the  difference  in  the  cost  of  the 
paper  between  the  price  named  in  its  bid  and  the  price  paid  by  the 
Government  for  it  elsewhere. 

(Comp.  Geo.  E.  Downey,  July  9,  1915.) 


HOSPITAL    FUND:    Cost    of    transportation    of    supplies    purchased    from; 
reopening  settled  accounts. 

Under  a  practice  of  many  years  standing  the  Quartermaster  Corps 
paid  the  freight  charges  on  hospital  supplies  purchased  from  the 
hospital  fund  at  Fort  Bayard,  N.  Mex.  In  the  settlement  of  the 
Quartermaster's  accounts  covering  a  portion  of  the  year  1914,  the 
Auditor  disallowed  such  payments  on  the  ground  that  the  expenses 
were  properly  payable  from  the  hospital  fund.  Upon  review  of  the 
Auditor's  action  and  also  as  to  whether  "  the  military  authorities 
should  be  called  upon  to  refund  any  sums  heretofore  paid  for  the 
transportation  of  articles  purchased  out  of  the  hospital  fund  at  Fort 
Bayard,  N.  Mex.,  or  elsewhere." 

Held^  that  the  payment,  from  funds  appropriated  for  the  transpor- 
tation of  the  Army,  of  the  freight  charge-s  on  hospital  supplies  pur- 
chased from  the  hospital  fund  resulted  in  augmenting  the  hospital 
fund  to  that  extent  and  was  without  authority  of  law,  such  charges 
being  properly  payable  from  the  hospital  fund  from  which  the  sup- 
plies were  purchased.  Held  further^  that  this  rule  should  not  be 
applied  retrospectively  so  as  to  disturb  closed  accounts,  but  should  be 
applied  to  any  incomplete  or  open  transaction. 

(Comp.  Geo.  E.  Downey,  Aug.  4,  1915.) 


MONEY  EXCHANGE:  Salaries  of  oflacers  serving  abroad. 

The  Army  appropriation  Act  of  March  4,  1915,  for  the  fiscal  year 
1916,  provides: 

"  For  payment  of  exchange  of  acting  quartermasters  serving  in 
foreign  countries     *     *     *     $600." 

In  considering  the  application  of  a  similar  provision  in  the  Army 
appropriation  Act  for  the  fiscal  year  1914  (37  Stat.,  709), 

Held^  that  the  purpose  of  said  provision  was  to  secure  special  dis- 
bursing agents  of  the  Quartermaster  Corps  against  loss  in  the  cashing 
or  sale  of  their  official  checks  issued  to  obtain  funds  with  which  to 
make  authorized  disbursements,  including  their  own  and  other  sal- 
aries ;  that  officers  serving  abroad  if  paid  in  local  currency  are  entitled 


512       DIGEST    OF    OPINIONS   OF    THE   JUDGE  ADVOCATE   GENERAL. 

to  be  paid  the  equivalent  of  their  salaries  expressed  in  United  States 
money  and  that  the  difference  between  this  equivalent  and  what  the 
local  currency  costs  represents  the  cost  of  exchange  for  which  the 
disbursing  officer  is  entitled  to  credit  in  his  accounts. 
(Comp.  Geo.  E.  Downey,  July  16,  1915.) 


QUARTERS,  HEAT,  AND  LIGHT:   Allowances  to   enlisted  men  on  fur- 
lough or  temporary  duty  in  the  field. 

By  the  Act  of  March  4,  1915  (38  Stat.,  1069),  appropriation  was 
made  for  the  payment  of  commutation  of  quarters,  heat  and  light  to 
enlisted  men  of  the  Army,  and  as  to  quarters  it  was  provided : 

"  That  hereafter,  at  places  where  there  are  no  public  quarters  avail- 
able, commutation  for  the  authorized  allowance  therefor  shall  be 
paid  *  *  *^  when  specifically  authorized  by  the  Secretary  of 
War,  to  enlisted  men  at  the  rate  of  $15  per  month,  or  in  lieu  thereof 
he  may,  in  his  discretion,  rent  quarters  for  the  use  of  said  enlisted  men 
when  so  on  duty." 

The  Act  of  March  2,  1907  (34  Stat,  1167),  provides: 

"  That  hereafter  the  heat  and  light  actually  necessary  for  the 
authorized  allowance  of  quarters  for  *  *  *  enlisted  men  shall 
be  furnished  at  the  expense  of  the  United  States  under  such  regu- 
lations as  the  Secretary  of  War  may  prescribe." 

Held^  that  an  enlisted  man  entitled  to  commutation  of  quarters  at 
his  regular  station  does  not  lose  the  right  thereto  while  absent  on  fur- 
lough or  temporarily  absent  on  duty  in  the  field,  and  that  if  his 
family  continue  to  occupy  his  quarters  during  his  absence  he  is  en- 
titled to  commutation  of  heat  and  light  also,  the  soldier  being  re- 
garded as  constructively  at  his  regular  station  during  said  temporary 

(Comp.  Geo.  E.  Downey,  Aug.  3,  1915.) 


TRANSPORTATION:  Enlisted  man  on  furlough  ordered  to  duty. 

A  noncommissioned  officer  whose  organization  w^as  stationed  at 
Madison  Barracks,  N.  Y.^  upon  being  relieved  by  orders  from  the 
War  Department  from  duty  with  the  New  Hampshire  National 
Guard  at  Concord,  N.  H.,  December  31,  1913,  was  granted  a  furlough 
until  February  28,  1914,  "  with  permission  to  go ;"  it  being  fur- 
ther specified  that  "  the  close  of  the  last  day  of  this  furlough  must 
find  him  at  such  place  as  the  War  Department  may  direct."  The 
soldier  went  to  Chicago,  and  before  the  expiration  of  his  furlough,  as 
extended,  he  was  directed  by  the  War  Department  March  18,  1914,  as 
follows : 

"  You  will  report  on  or  before  the  expiration  of  your  furlough  as 
extended  to  the  Commanding  Officer,  Madison  Barracks,  N.  Y.,  for 
duty." 

The  soldier  applied  to  the  military  authorities  at  Chicago  for  trans- 
portation but  was  advised,  in  view  of  doubt  as  to  whether  he  was 
entitled  thereto,  to  pay  his  own  fare  and  apply  for  reimbursement, 
which  he  did. 

Eeld^  that  the  principle  applicable  was  to  be  found  in  par.  1294, 
A.  R.,  1913,  reading  as  follows:  "An  officer  relieved  from  duty  at  a 


DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE    GENERAL.       513 

station  and  granted  leave  of  absence  before  assignment  to  another, 
Avho  receives  an  order  of  assignment  before  expiration  of  leave,  is 
entitled  to  mileage  from  the  place  where  he  receives  the  order  to  his 
new  station  " ;  that  while  this  regulation  applies  in  terms  to  officers 
only,  the  principle  should  govern  this  case  and  that  therefore  the 
soldier  was  entitled  to  reimbursement  of  his  travel  expenses  in  an 
amount  equal  to  what  it  would  have  cost  the  Government  to  trans- 
port him  from  the  place  where  he  received  the  order  of  March  18, 
1914,  to  his  proper  station. 

(Comp.  Geo.  E.  Downey,  June  2,  1915.) 

93668°— 17 33 


BULLETIN  32. 

Bulletin  1  WAK  DEPARTMENT, 

No.  32.     J  Washington,  September  10,  1915. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 

of  the  xirmy  for  the  month  of  August,  1915,  and  of  certain  decisions 

of  the  Comptroller  of  the  Treasury,  is  published  for  the  information 

of  the  service  in  general. 
[2255370  H— A.  G.  O.] 

By  order  of  the  Secretary  of  War  : 

H.  L.  SCOTT, 

Major  GeTieral,  Chief  of  Staff. 
Official  : 

H.  P.  McCain, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

A  CORRECTION. 

On  page  5  of  Bulletin  No.  18,  War  Department,  1915,  line  11, 
change  "  Manual  for  the  Pay  Department "  to  read  "Army  Regula- 
tions." 


COMMAND:  Detail  of  staff  officer  as  officer  of  the  day. 

The  question  was  presented  whether  under  existing  regulations  an 
officer  serving  a  detail  in  the  Quartermaster  Corps  may  be  required 
by  his  post  commander  to  act  as  officer  of  the  day.  Paragraph  18, 
A.  R.,  1913,  provides  that  a  staff  officer,  "  though  eligible  to  command, 
according  to  his  rank,  shall  not  assume  command  of  troops  unless 
put  on  duty  under  orders  which  specially  so  direct,  by  authority  of 
the  President." 

Held,  that  service  as  officer  of  the  day  involves  command  of  troops, 
and  that  the  detail  by  a  post  commander  of  an  officer  of  the  Quarter- 
master Corps  for  that  duty  w^ould  be  in  violation  of  existing  regula- 
tions. 

(20-012.2,  J.  A.  G.,  Aug.  16,  1915.) 


DETACHED  SERVICE:  Officers  on  duty  in  command  of  guard. 

Two  officers  with  rank  of  first  and  second  lieutenant,  respectively, 
were  ordered  to  duty  from  Fort  Hamilton,  N.  Y.,  with  a  detachment 
composed  of  51  enlisted  men,  10  from  each  of  their  companies  and  3 
other  companies  at  Fort  Hamilton  and  1  from  the  Hospital  Corps, 
and  the  question  was  presented  whether  the  officers  while  on  such 
duty  should  be  regarded  as  on  duty  with  their  companies  under  the 
detached  service  law  (37  Stat.,  571). 

514 


DIGEST    OF    OPIISriONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       515 

Held^  that  since  the  officers  were  not  detailed  for  the  performance 
of  co7npa7vy  duties  or  sent  in  command  of  detachments  from  tlielr 
companies,  but  for  general  duty  with  the  detachment  as  a  whole  or  as 
a  single  detachment  from  Fort  Hamilton,  which  duty  was  not  inci- 
dent to  nor  flowed  from  their  company  relations,  they  could  not 
properly  be  regarded  as  present  for  duty  with  their  companies  in 
the  sense  of  the  detached  service  law. 

(6-124.22,  J.  A.  G.,  Aug.  26,  1915.) 


ENIilSTMENT:   Eligibility   of    applicant    with   record    of    commitment   for 
truancy. 

Paragraph  849,  A.  E.,  1913,  forbids  the  enlistment,  among  others, 
of  persons  "  who  have  been  imprisoned  under  sentence  of  a  court 
in  a  reformatory,  jail,  or  penitentiary." 

Held^  that  this  provision  does  not  apply  to  commitments  for 
truancy,  and  that  therefore  an  applicant  who  "  was  committed  for 
422  days  to  the  New  York  Parental  School  on  account  of  truancy  " 
was  not  ineligible  for  enlistment  because  of  said  commitment. 

(34-081,  J.  A.  G.,  Aug.  6,  1915.) 


MAIL  MATTER:  As  to  registration  and  insurance. 

In  view  of  the  ruling  (Bui.  18,  W.  D.,  1915,  page  4)  that  there  was 
no  authority  for  furnishing  stamps  for  parcel  post  insurance,  the 
question  was  presented  whether  the  registration  of  mail  matter  should 
be  regarded  as  insurance  and  the  issuing  of  stamps  therefor  governed 
by  the  said  ruling. 

Held^  that  the  registration  of  mail  matter  is  not  for  the  purpose  of 
providing  ordinary  indemnity  insurance  such  as  is  contemplated  in 
the  case  of  insurance  of  parcel  post  packages,  which  are  carried  and 
treated  as  ordinary  mail,  but  that  the  primaiy  object  of  registration 
is  to  avail  of  the  special  or  superior  service  designed  to  secure  the  safe 
delivery  of  the  mail  matter  itself,  the  use  of  which  service  is  well 
established  in  all  branches  of  the  Government,  and  that  therefore 
postage  might  properly  be  furnished  for  the  registration  of  mail 
matter  when  necessary  in  the  Army  service. 

(5-240,  J.  A.  G.,  August  12,  1915.) 


OFFICERS:  Examinations  for  promotion. 

A  first  lieutenant  who  failed  in  a  mental  examination  for  promo- 
tion to  the  grade  of  captain  and  was  suspended  from  further  exam- 
ination for  a  year,  according  to  law,  graduated  from  the  Coast 
Artillery  School  during  the  said  year  of  suspension,  receiving  cer- 
tificates of  proficiency  in  all  subjects.  He  desired  to  know  whether  he 
would  be  exempt  from  further  examination  in  the  subjects  covered 
by  such  certificates,  and  also  whether  he  would  be  required  to  take 
examination  in  the  subjects  in  which  he  qualified  on  his  previous 
examination. 

Section  3  of  the  act  of  October  1,  1890  (26  Stat.,  562),  provides, 
inter  alia^  that  the  President  will  prescribe  a  system  of  examination 
of  all  officers  of  tho  Army  below  the  rank  of  major  to  determine  their 


516       DIGEST   OF    OPINIONS   OF   THE   JUDGE  ADVOCATE   GENERAL. 

fitness  lor  promotion,  and  that  an  officer  failing  on  a  mental  exam- 
ination sliall  be  suspended  from  promotion  for  one  year  and  then 
be  reexamined.  The  regulations  applicable  are  contained  in  General 
Orders,  No.  14,  War  Department,  April  25,  1912,  paragraph  28  of 
which  exempts  certain  officers  from  examination  "  as  to  their  profes- 
sional fitness  for  promotion  to  the  next  higher  grade  under  the  condi- 
tions and  with  the  limitations  hereinafter  set  forth."  Among  those 
listed  are  graduates  of  the  Coast  Artillery  School  who  are  exempt 
for  four  years  from  the  date  of  graduation  "  in  all  subjects  which 
tliey  have  pursued  satisfactorily  at  that  school."  Paragraph  34  of 
the  order  directs  that  "  the  procedure  prescribed  in  this  order  for  the 
examination  of  officers  for  promotion  will  be  followed  in  the  reex- 
amination of  officers  suspended  from  promotion." 

Held,  that  upon  reexamination  the  officer  would  be  exempt  from 
examination  in  the  subjects  covered  by  his  Coast  Artillery  School 
diploma,  subject  to  the  limitations  set  forth  in  paragraph  28,  G.  O. 
No.  14,  W.  D.,  1912,  although  he  may  have  failed  on  such  subjects  in 
his  former  examination,  but  that  he  would  not  be  exempt  from  ex- 
amination on  any  subject  by  reason  of  having  qualified  therein  on  his 
previous  examination. 

(64-221.4,  J.  A.  G.,  Aug.  30,  1915.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

CIVILIAN  EMPLOYEES:    Temporary  promotions. 

The  first  deck  ollicer  of  an  Amiy  transport  was  granted  leave  of 
absence  without  pay  and  it  was  proposed  to  fill  the  "vacancy"  by 
temporary  promotions  from  the  lower  grades.  Section  12  of  the 
Simdry  Civil  Appropriation  Act  of  August  1,  1914,  provides: 

"  That  it  shall  not  be  lawful  hereafter  to  pay  to  any  person,  em- 
ployed in  the  service  of  the  United  States  under  any  general  or  lump 
sum  appropriation,  any  sum  additional  to  the  regular  compensation 
received  for  or  attached  to  any  employment  held  prior  to  an  ap- 
pointment or  designation  as  acting  for  or  instead  of  an  occupant  of 
any  other  office  or  employment.  This  provision  shall  not  be  con- 
strued as  proliibiting  regular  and  permanent  appointments  by  pro- 
motion from  lower  to  higher  grades  of  employments." 

Held,  that  the  first  officer  while  in  the  status  of  absence  on  leave 
Vvithout  pay  was  still  in  the  transport  service  and  that  so  long  as  he 
remained  in  that  status  a  "  temporary  promotion "  of  the  second 
officer  could  not  be  a  promotion  to  a  vacancij,  but  in  effect  a  designa- 
tion of  the  second  officer  as  acting  first  officer,  and  that  as  the  object 
sought  was  to  give  the  lower  officer  the  higher  pay,  the  prohibition 
of  the  statute  would  apply.  Held  further,  that  temporary  promo- 
tions are  not  prohibited  by  the  statute  where  vacancies  exist. 

(Comp.  Geo.  P].  Downey,  Aug.  12,  1915.) 


TRANSPORTATON:  Discharge  of  enlisted  man. 

A  soldier  who  had  enlisted  at  Fort  Logan  H.  Roots,  Ark.,  was  dis- 
charged at  Galveston,  Tex.  The  official  distance  between  the  place 
of  enlistment  and  the  place  of  discharge,  for  purposes  of  transporta- 


DIGEST    OF    OPINIONS   OF   THE    JUDGE   ADVOCATE   GENERAL.       517 

tion,  was  found  to  be  519  miles.  The  soldier  requested  transporta- 
tion to  Mobile,  Ala.,  or  as  far  in  that  direction  as  his  519  miles  enti- 
tled him  to  travel.  The  distance  to  Mobile,  by  the  Official  Table  of 
Distances,  was  found  to  be  551  miles,  or  32  miles  farther  than  from 
Galveston  to  Fort  Logan  H.  Roots.  By  a  short-line,  however,  com- 
puted in  part  from  the  Railway  Guide,  the  distance  to  Mobile  was 
found  to  be  496  miles,  and  the  soldier  was  furni'shed  transportation 
over  the  shorter  route  to  Mobile,  at  a  cost  of  $15,45.  The  cost  of 
transportation  to  Little  Rock,  Ark.,  the  nearest  station  to  the  place 
of  enlistment,  would  not  have  exceeded  $10.43,  and  the  auditor  dis- 
allowed $5.02  in  the  settlement  of  accounts. 

Tleld^  that  the  distance  for  which  the  transportation  was  furnished 
(496  miles)  did  not  exceed  the  distance  (519  miles)  from  the  place 
of  the  soldier's  discharge  to  the  place  of  his  enlistment  (37  Stat., 
576),  and  that  as  transportation  not  exceeding  such  distance  was  re- 
quired to  be  furnished,  without  regard  to  the  cost  (Bui.  1,  W.  D., 
1913,  page  33),  the  entire  sum  of  $15.45  was  properly  disbursed  there- 
for. 

(Comp.  Geo.  E.  Downey,  Aug.  20,  1915.) 


TRANSPORTATION:  Immigrant  rates  on  troop  property  and  equipment. 

In  the  settlement  of  the  accounts  of  a  railway  company  for  trans- 
portation of  15,121  pounds  of  equipage  and  troop  property  from  Win- 
gate,  N.  Mex.,  to  Albuquerque,  N.  Mex.,  and  114,789  pounds  (4  cars) 
from  Fort  Bliss,  Tex.,  to  Wingate,  N.  Mex.,  the  Auditor  for  the  War 
Department  applied  the  rate  authorized  for  immigrant  movables  and 
household  goods.  The  railroad  company  contended  that  the  immi- 
grant rate  was  not  applicable  and  that  settlement  should  be  made  on 
the  basis  of  the  rates  applicable  for  the  specific  items  embraced  in 
the  shipment,  for  the  reason,  among  others,  that  "the  immigrant 
movables  rate  is  applicable  to  shipment  of  persons  moving  into  a 
new  country  for  the  purpose  of  settling  and  development,  and  the 
purpose  of  a  movement  of  troop  property  and  military  stores  can  not 
be  placed  in  the  same  class  as  that  of  an  intended  settler." 

Heldy  that  the  shipment  consisted  of  articles  which,  had  they  be- 
longed to  private  individuals,  would  have  been  entitled  to  the  rate 
for  immigrant  movables  and  household  goods;  that  because  they  be- 
longed to,  or  were  in  the  custody  of,  the  Government  was  no  reason 
for  any  higher  transportation  charges  thereon ;  that  it  is  established 
by  rulings  of  the  Interstate  Commerce  Commission,  and  of  the 
courts,  that  the  rate  applicable  for  shipment  is  not  dependent  upon 
the  owner  of  the  goods  or  the  purpose  for  which  the  articles  are  to  be 
used,  but  of  the  class  of  articles  embraced  in  the  shipment.  Action 
of  the  Auditor  affirmed. 

(Comp.  Geo.  E.  Downey,  Aug.  11,  1915.) 


BULLETIN  36. 

Bulletin!  WAR  DEPARTMENT, 

No.  36.    J  Washhstgton,  November  10^  1915. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army,  for  the  months  of  September  and  October,  1915,  and  of 
certain  decisions  of  the  Comptroller  of  the  Treasury  and  courts,  to- 
gether with  a  collection  of  notes  on  military  justice  prepared  under 
the  direction  of  the  Judge  Advocate  General  of  the  Army,  is  pub- 
lished for  the  information  of  the  service  in  general. 
[2255370,  A.  G.  O.] 

By  order  or  the  Secretary  of  War  : 

H.  L.  SCOTT, 

Major  General,  Chief  of  Staff. 
Official  : 

H.  P.  McCAIN, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ATTORNEYS:  Employment  of. 

A  certain  military  attache  obtained  the  services  of  an  attorney 
abroad  in  preparing  a  lease  for  an  office  room. 

Tleld^  that  in  view  of  section  189,  Revised  Statutes,  which  provides 
that  "  no  head  of  a  department  shall  employ  attorneys  or  counsel  at 
the  expense  of  the  United  States;  but  when  in  need  of  counsel  or 
advice,  shall  call  upon  the  Department  of  Justice,  the  officers  of 
which  shall  attend  to  the  same,"  the  War  Department  could  not 
authorize  the  pavment  of  the  attorney's  fee. 

(5-212,  J.  A.  G.,  Oct.  16,  1915.) 


COURTS-MARTIAL:    Soldier    sentenced    to    dishonorable    discharge    while 
serving  a  prior  sentence;  cumulative  sentences. 

An  enlisted  man  was  convicted  by  special  court-martial  and  sen- 
tenced to  confinement  at  hard  labor  for  six  months  and  forfeiture  of 
two-thirds  of  his  pay  for  the  same  period.  Shortly  after  the  execu- 
tion of  this  sentence  was  begun,  the  soldier  was  convicted  by  general 
court-martial  and  sentenced  to  dishonorable  discharge  and  three 
days'  confinement  at  hard  labor.  The  question  was  submitted  whether 
the  execution  of  the  general  court-martial  sentence  should  be  deferred 
until  the  sentence  of  the  special  court-martial  was  fully  executed  so 
as  to  make  the  sentences  cumulative,  or  whether  it  was  required  to 
l)e  executed  forthwith.  Doubt  arose  because,  of  the  apparent  con- 
flict between  paragraph  973,  A.  R.,  1913,  and  paragraph  10,  page  73, 
518 


DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       519 

of  the  Manual  for  Courts-Martial,  as  well  as  because  of  uncertainty 
as  to  the  requirements  of  paragraph  152,  A.  R. 

Paragraph  973,  A,  R.,  directs  that  when  soldiers  awaiting  result 
of  trial  or  undergoing  sentence  commit  offenses  for  which  they  are 
tried,  the  second  sentence  will  be  executed  upon  the  expiration  of  the 
first.  Paragraph  10,  page  73,  Manual  for  Courts-Martial  provides 
that  where  a  soldier,  while  undergoing  sentence  of  confinement  im- 
posed without  dishonorable  discharge,  is  tried  for  a  further  offense 
and  sentenced  to  dishonorable  discharge  and  confinement,  the  period 
of  confinement  under  his  prior  sentence  will  terminate  upon  the  date 
of  his  dishonorable  discharge,  leaving  to  be  executed  only  the  con- 
finement imposed  by  the  second  sentence. 

Held^  that  paragraph  973,  A.  R.,  and  the  provision  of  the  Manual 
for  Courts-Martial  should  be  so  construed  as  to  give  effect  to  both 
if  possible  and  that  this  can  be  done  only  by  giving  literal  effect  to 
the  provision  of  the  Court-Martial  Manual,  which  would  result  in 
negativing  paragraph  973,  A.  R.,  in  but  one  class  of  cases,  namely, 
where  the  soldier  is  serving  a  sentence  of  confinement  not  involving 
dishonorable  discharge  as  in  the  instant  case,  leaving  the  paragraph 
free  to  operate  in  all  other  cases  coming  within  its  terms.  Held  fur- 
ther^ that  under  paragraph  152,  A.  R.,  a  soldier  is  presumed  to 
receive  notice  of  discharge  on  the  day  of  the  arrival  of  the  general 
court-martial  order  at  his  post. 

(28-420,  J.  A.  G.,  Oct.  5,  1915.) 


DESERTION:  When  soldier  is  liable  for  the  amount  of  reward. 

A  deserter  from  the  Army  was  apprehended  and  instead  of  being 
tried  by  court-martial  was  discharged  "  by  reason  of  desertion  and 
physical  unfitness  for  service,"  under  paragraph  126,  A.  R.,  as 
amended.  Thereafter  he  applied  for  refundment  to  him  of  $50 
stopped  against  his  final  pay  to  cover  the  amount  paid  as  a  reward 
for  his  apprehension. 

Held^  that  the  stoppage  in  question  was  unauthorized  and  should 
be  refunded  to  the  claimant,  since  stoppage  against  the  pay  of  a 
soldier  to  cover  the  cost  of  his  apprehension  as  a  deserter  and  return 
to  military  control  is  authorized  only  (a)  upon  the  actual  conviction 
of  the  soldier  of  desertion  by  court-martial,  or  (&)  upon  his  admis- 
sion of  the  crime  of  desertion  preliminary  to  his  restoration  to  duty 
without  trial.     (127  and  131,  A.  R.) 

(26-464,  J.  A.  G.,  Oct.  16,  1915.) 


ENLISTED  MEN:  Travel  without  troops;  Pullman  car  accommodations. 

On  the  question  of  what  constitutes  traveling  without  troops 
within  the  meaning  of  paragraph  1128,  A.  R.,  relating  to  the  fur- 
nishing of  Pullman  car  accommodations  to  enlisted  men, 

Held^  that  the  term  "  troops  "  in  said  regulation  contemplates  an 
organization  of  some  description  under  proper  command;  that  usu- 
ally in  the  case  of  a  detachment  under  the  command  of  an  officer 
the  object  of  travel  is  the  performance  of  some  special  duty,  although 
it  may  be  otherwise,  as  in  the  case  of  a  recruiting  party ;  that,  there- 


520        DIGEST    OF    OPINIONS    OF    THE    JUDGE   ADVOCATE    GENERAL. 

fore,  when  enlisted  men  perform  travel  not  within  an  organization 
of  some  description  under  proper  command,  they  are  to  be  regarded 
as  traveling  without  troops. 

(94-240,  J.  A.  G.,  Sept.  18, 1915.) 

HEAT  AND  LIGHT :  Enlisted  man  on  temporary  duty  in  the  field. 

In  an  opinion  published  in  Bulletin  No.  5,  page  5,  War  Depart- 
ment, 1915,  the  Judge  Advocate  General  held  that  a  noncommis- 
sioned officer  on  temporary  duty  in  the  field  was  not  entitled  to  heat 
and  light  allowances  for  his  family  at  his  regular  station.  Subse- 
quently the  Comptroller  held  that  an  enlisted  man  entitled  to  com- 
mutation of  quarters  at  his  regular  station  did  not  lose  his  right 
thereto  while  absent  on  furlough  or  temporarily  absent  on  duty  in  the 
field,  and  that  if  his  family  continued  to  occupy  his  quarters  during 
his  absence  he  was  entitled  to  commutation  of  heat  and  light  also. 

A  soldier  who  had  paid  for  fuel  and  light  under  the  Judge  Advo- 
cate General's  ruling  applied  for  refundment  of  the  amount  so  paid 
in  view  of  the  Comptroller's  decision. 

Held^  that  there  is  nothing  in  the  statute  on  the  subject  to  justify 
a  difference  in  practice  in  providing  heat  and  light  allowances  in 
kind  from  that  pertaining  to  commutation  of  those  allowances,  and 
that  the  practice  in  regard  to  furnishing  such  allowances  in  kind 
should  be  changed  to  conform  to  the  comptroller's  ruling  in  respect 
of  commutation  thereof. 

(72-411,  J.  A.  G.,  Sept.  30, 1915.) 

Note. — Under  the  changed  construction  it  was  held  by  the  comp- 
troller in  a  decision  of  October  11,  1915,  that  the  amount  in  question 
collected  from  the  soldier  for  fuel  and  light  furnished  his  family  at 
his  regular  station  during  his  temporary  absence  on  duty  in  the  field 
could  properly  be  refunded  to  him  from  the  appropriation  to  the 
credit  of  which  it  was  deposited,  as  a  refundment  of  money  errone- 
ously collected. 

MEDICAL  RESERVE  OFFICERS:   Computation  of  time  for  longevity  in- 
crease. 

An  officer  of  the  Medical  Reserve  Corps  was  at  the  time  of  his  ap- 
pointment thereto  a  contract  surgeon.  He  accepted  his  appointment 
March  6,  1915,  and  was  not  assigned  to  active  duty  thereunder  until 
March  16,  1915.  In  the  interim  he  continued  to  serve  as  contract 
surgeon. 

EeM,  that  under  the  act  of  April  23,  1908  (35  Stat.,  68),  the  pay 
status  of  an  officer  of  the  Medical  Reserve  Corps  does  not  commence 
until  he  is  called  into  active  duty ;  and  that  as  the  officer  in  the  instant 
case  was  not  assigned  to  active  duty  as  an  officer  of  the  Medical 
Reserve  Corps  until  March  17,  1915,  his  service  for  the  purpose  of 
longevity  increase  began  on  the  later  date. 

(6-227.4,  J.  A.  G.,  Sept.  2, 1915.) 


NAVIGABLE  WATERS:  Rig-ht  of  United  States  to  use  of  river  bed. 

^  In  connecetion  with  improvements  along  the  Mississippi  River  in 
aid  of  navigation,  the  United  States  obtained  sand  and  gravel  from 
bars  in  the  river  for  use  in  paving  the  river  banks.  The  riparian 
owners  demanded  payment  for  the  material. 


DIGEST    OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENEBAL.       521 

Jleld^  that  the  United  States  has  a  paramount  right  under  the  com- 
merce clause  of  the  Constitution  to  use  the  bed  of  navigable  streams 
for  any  purpose  designed  to  improve  the  navigation  of  the  stream 
without  compensation  to  the  riparian  owners,  and  that  there  was  no 
obligation  to  make  payment  in  this  case. 

(62-120,  J.  A.  (}.,  Oct.  27,  1915.) 


TOURS  OF  DUTY  LAW:  Leaves  of  absence. 

In  reference  to  the  act  of  March  4,  1915,  providing  that  no  officer 
or  enlisted  man  of  the  Army  shall,  except  upon  his  own  request,  be 
required  to  serve  in  a  single  tour  of  duty  for  more  than  two  years  in 
the  Philippine  Islands. 

Held.,  that  leaves  of  absence  spent  in  the  Philippine  Islands  by  an 
officer  serving  there  should  not  be  omitted  in  reckoning  the  length 
of  his  tour  of  duty,  but  that  any  time  during  which  he  is  absent  from 
the  islands,  from  whatever  cause,  may  properly  be  excluded. 

(92-400,  J.  A.  G.,  Oct.  4, 1915. ) 


TRANSPORTATION:  Gasoline  for  officer's  private  automobile  used  in  Gov- 
ernment service. 

A  first  lieutenant  in  the  Engineer  Corps  who  had  charge  of  a  field 
detachment  operating  in  two  parties  about  five  miles  apart  used  his 
private  automobile  in  the  performance  of  his  official  duties,  instead 
of  a  team  of  mules  which  he  returned  to  the  Quartermaster  Corps. 
He  requested  that  he  be  furnished  gasoline  and  lubricating  oil  for  his 
autoniobile,  pointing  out  in  support  of  his  request  the  advantages 
accruing  from  the  use  of  his  automobile. 

S'eZ^?,  that  there  is  no  authority  of  law  for  furnishing  gasoline  and' 
lubricating  oil  for  use  in  a  privately  owned  and  operated  automobile ; 
that  Congress  has  provided  the  means  of  transportation  for  the 
Army  which  can  not  be  varied;  that  the  provision  in  the  current 
Army  appropriation  act  for  the  hire  and  operation  of  vehicles  "  re- 
quired for  the  transportation  of  troops  and  supplies  and  for  official, 
rnilitary,  and  garrison  purposes,"  evidently  contemplates  that  ve- 
hicles used  in  the  public  service,  at  public  expense  for  operation,  must 
be  operated  under  the  jurisdiction  of  the  Government  either  as 
owned  or  hired  vehicles.  Held  further.,  that  the  hire  of  the  automo- 
bile from  the  officer  in  the  instant  case  would  be  contrary  to  para- 
graph 521,  A.  R. 

(94-012,  J.  A.  G.,  Sept.  10, 1915.) 


TRANSPORTATION:   Officer's  baggage  allowance  on  change  of  station. 

By  an  order  of  January  14,  1915,  an  officer  with  rank  of  captain 
was  directed  to  change  station  from  Washington  Barracks,  D.  C.,  to 
St.  Louis,  Mo.,  effective  March  1,  1915.  On  April  10,  1915,  the  officer 
was  promoted  to  major  with  rank  from  February  28,  1915,  or  one  day 
prior  to  his  leaving  for  St.  Louis  under  the  orders  mentioned.  His 
household  goods  were  not  shipped  until  August  28,  1915,  and  the 


522        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

question  was  presented  whether  he  was  entitled  to  a  captain's  or  a 
major's  allowance  in  respect  of  such  shipment. 

Ihdd,  that  the  shipment  of  an  officer's  baggage  is  an  allowance  in 
kind;  that  the  officer's  commission  was  retroactive  for  the  purpose 
of  pay  and  fixed  allowances  but  not  as  to  allowances  in  kind  (19 
Comp.  Dec,  414)  ;  and  that  as  the  officer  was  actually  a  captain  at 
the  time  the  travel  was  performed  and  would  have  been  entitled  only 
to  a  captain's  allowance  had  the  shipment  been  coincident  with  his 
change  of  station,  which  is  the  normal  procedure,  his  rights  in  the 
matter  were  governed  by  the  conditions  actually  existing  at  the  time 
of  the  performance  of  the  travel,  which  entitled  him  only  to  a  cap- 
tain's allowance. 

(94-233,  J.  A.  G.,  Sept.  13,  1915.) 


DECISIONS  OF  THE  COMPTROLLEE  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  tlie  Judge  Advocate  General.) 

APPROPRIATIONS:  Transportation  charges  on  condemned  horses  issued 
to  Militia. 

By  the  act  of  March  4,  1915  (38  Stat.,  1072),  provision  was  made 
for  the  purchase  of  horses  for  the  Organized  Militia  from  funds 
appropriated  by  section  16G1,  Revised  Statutes,  and  provision  was 
further  made  for  issuance  to  the  militia,  without  cost  to  the  State, 
of  condemned  Army  horses  which  are  no  longer  fit  for  service  but 
may  still  be  suitable  for  purposes  of  instruction.  The  current  Army 
appropriation  act  under  the  heading  "  Transportation  of  the  Army 
and  its  supplies "  provides  "  for  transportation  *  *  *  ^f  g^^p. 
plies  furnished  to  the  militia  for  the  permanent  equipment  there- 
of,    *     *     *." 

Ileld^  that  the  latter  provision  did  not  embrace  horses,  but  referred 
to  the  transportation  of  supplies  authorized  to  be  furnished  to  the 
militia  under  section  17  of  the  act  of  January  21,  1903  (32  Stat., 
778)  ;  and  that  the  cost  of  the  transportation  of  condemned  horses 
issued  to  the  militia  was  properly  payable  from  the  militia  funds 
provided  bv  section  1661,  Revised  Statutes. 

(Comp.  W.  W.  Warwick,  Sept.  30,  1915.) 


ARMY  RESERVE:   Transportation  allowances  of  enlisted  men  when  fur- 
loughed  to  the  Reserve. 

The  act  creating  the  Army  Reserve  (37  Stat.,  590)  provides  in 
part  that — 

"  Hereafter  the  Army  Reserve  shall  consist  of  all  enlisted  men  who 
after  having  served  not  less  than  4  years  with  the  organizations  of 
which  they  form  a  part  shall  receive  furloughs  with  pay  or  allow- 
ances until  the  expiration  of  their  terms  of  enlistment,  together  with 
transportation  in  kind  and  subsistence  as  provided  for  by  this  act  in 
the  case  of  discharged  soldiers,     *     *     *." 

The  provision  referred  to  in  the  same  act  "in  the  case  of  dis- 
charged soldiers"  authorizes  the  furnishing  of  transportation  in  kind 
and  subsistence  or,  in  lieu  thereof,  two  cents  a  mile,  exclusive  of 
sea  travel,  to  discharged  enlisted  men. 


DIGEST    OF    OPIlSriONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       523 

Held^  that  the  language  "  together  with  transportation  in  kind 
and  subsistence  as  provided  foi'  by  this  act  in  the  case  of  discharged 
soldiers  "  evidently  was  intended  only  to  identify  the  general  provi- 
sions of  law  applicable,  and  was  not  intended  to  limit  the  privileges 
and  allowances  of  soldiers  receiving  furloughs  to  the  Army  Reserve 
to  transportation  in  kind  and  subsistence,  and  that  they  are  therefore 
entitled  to  receive  two  cents  a  mile  in  lieu  of  transportation  in  kind 
and  subsistence,  in  the  same  manner  as  is  provided  for  in  the  case  of 
enlisted  men  upon  their  discharge  from  the  service. 

(Comp.  W.  W.  Warwick,  Oct.  16,  1915.) 


AVIATION  SERVICE:  Pay  of  officer  while  on  leave  of  absence. 

The  act  of  July  19,  1914  (38  Stat.,  514),  creating  the  Aviation 
Section  of  the  Signal  Corps  and  providing  for  the  detail  of  officers 
thereto,  grants  a  "junior  military  aviator"  an  increase  of  50  per 
centum  in  the  pay  of  his  grade  and  length  of  service  under  his  line 
commission  "  while  on  duty  requiring  him  to  participate  regularly 
and  frequently  in  aerial  flights."  The  increase  is  75  per  centum  in 
the  case  of  "  military  aviators." 

Held^  that  the  right  to  the  increased  pay  of  50  per  centum,  or  75 
per  centum,  is  dependent  upon  duty  rather  than  upon  detail  alone, 
and  that  therefore  an  officer  is  not  entitled  to  the  increase  for  time 
during  wdiich  he  is  on  leave  of  absence. 

(Comp.  W.  W.  Warwick,  Sept.  21,  1915.) 


CHECKS:  Issuance  of  second  original,  as  distinguished  from  duplicate,  when 
orig'inal  is  lost. 

The  question  was  submitted  by  the  Secretary  of  the  Treasury 
whether  it  is  proper  to  permit  a  disbursing  officer  to  issue  a  second 
original  check  when  the  original  check  is  lost,  stolen,  or  destroyed. 

Section  3646,  Revised  Statutes,  as  amended  (35  Stat.,  643),  pro- 
vides in  substance,  inter  alia^  that  whenever  any  original  check  issued 
by  a  disbursing  officer  has  been  lost,  stolen,  or  destroyed,  the  Secre- 
tarjr  of  the  Treasury  may  authorize  the  disbursing  officer,  after  the 
expiration  of  six  months  and  within  three  years  from  the  date  of 
the  lost  check,  to  issue  a  duplicate  upon  the  execution  of  a  pre- 
scribed indemnity  bond ;  provided,  that  if  the  original  check  was  not 
for  more  than  $50  a  duplicate  may  be  authorized  after  30  days  and 
within  three  years. 

Held.,  that  while  disbursing  officers  are  not  prohibited  by  statute 
from  assuming  the  responsibility  resulting  from  the  issuance  of  a 
second  original  check,  the  propriety  of  so  doing  is  under  the  control 
of  the  accounting  officers  and  not  within  the  discretion  of  a  dis- 
bursing officer,  nor  for  the  regulation  of  the  department  for  which 
he  is  acting.  Held  further^  that  the  procedure  prescribed  by  the 
statute  should  be  followed,  and  no  second  original  check  should  be 
issued  even  though  the  lost  check  be  one  which  the  disbursing  officer 
has  drawn  in  his  own  favor. 

(Acting  Comp.  Treas.,  Oct.  29,  1915.) 


524        DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE    GENERAL. 

COURTS-MARTIAL:  Effect  of  sentence  as  to  forfeiture  of  pay. 

The  following  question  was  submitted  for  the  Comptroller's  de- 
cision :  When  an  enlisted  man  of  the  Army  is  sentenced  under  the 
provisions  of  G.  O.  70,  War  Department,  September  23,  1914,  to  for- 
feit, say,  one-half  or  two-thirds  of  his  pay  per  month,  or  pay  for  15 
days,  should  the  following  items  of  pay  be  considered  in  computing 
the  amount  of  such  forfeiture? 

(1)  Additional  pay  as  expert  rifleman,  sharpshooter,  and  marks- 
man. 

(2)  Additional  pay  as  first-class  and  second-class  gunner. 

(3)  Additional  pay  as  casemate  electrician,  observer,  first  class, 
plotter,  chief  planter,  chief  loader,  observer,  second  class,  gun  com- 
mander, gun  pointer. 

(4)  Additional  pay  as  mess  sergeant. 

(5)  Fifty  per  cent,  increase  aviation  service,  act  of  July  18,  1914, 
including  increase  provided  for  "  aviation  mechanician." 

(6)  Twenty  per  cent,  increase  of  pay  for  foreign  service  under 
the  act  of  June  30,  1902  (32  Stat.,  312),  as  modified  by  the  act  of 
August  24,  1912  (37  Stat.,  576). 

(7)  Pay  for  certificate  of  merit. 

Held.,  that  each  of  the  various  items  mentioned  constitutes  a  part 
of  the  soldier's  "  pay  "  as  that  term  is  generally  understood,  and  that 
in  the  absence  of  an  express  stipulation  to  the  contrary  a  court- 
martial  sentence  forfeiting  all  or  a  fractional  part  of  a  soldier's  pay 
for  a  specified  period  must  be  held  to  include  all  such  items. 

(Comp.  W.  W.  Warwick,  Oct.  22,  1916.) 

Note. — The  above  decision  is  distinguished  from  the  Comptroller's 
decision  of  May  19,  1915  (published  in  Bulletin  21,  page  11,  War 
Department,  1916),  to  the  effect  that  the  term  ^'' pay  proper''''  as  used 
in  the  foreign  service  pay  act  of  June  30,  1902,  does  not  include 
extra  pay  allowed  for  special  assignments.  It  does  not  follow 
that  because  such  extra  pay  is  not  "  pay  proper  "  within  the  meaning 
of  the  act  of  1902,  it  can  not  be  regarded  as  pay  within  the  meaning 
of  a  sentence  forfeiting  a  soldier's  pay  or  a  part  thereof  for  a  speci- 
fied period.  It  will  be  noted  also  that  the  present  decision  is  in  har- 
mony with  the  practice  of  the  service.  (See  Par.  958,  Manual  for  the 
Pay  Department,  1910.) 


TRANSPORTATION:   Basis  of  freight  charges  when  weight  of  shipment 
shrinks  en  route  from  natural  causes. 

A  shipment  of  hemp  by  the  Navy  Department  from  Manila,  P.  I., 
to  Boston,  Mass.,  by  commercial  liner  was  found  upon  receipt  at  des- 
tination to  have  shrunk  in  weight  en  route,  and  the  question  was  pre- 
sented whether  the  freight  charges  should  be  reckoned  upon  the 
weight  of  the  hemp  at  Manila  or  upon  its  weight  at  its  destination. 
The  amount  of  shrinkage  was  2,369  pounds  on  an  initial  shipment 
of  223,424  pounds,  and  it  was  evident  that  the  shrinkage  was  due 
to  natural  causes  and  not  to  actual  shortage  or  to  improper  service 
on  the  part  of  the  transportation  company. 

Held,  that  the  company  having  transported  under  the  usual  con- 
ditions affecting  marine  shipments  the  amount  of  hemp  which  it 


DIGEST   OF    OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.        525 

undertook  to  carrj'^,  and  there  being  no  question  of  negligence  nor 
as  to  accuracy  of  the  weight,  the  discrepancy  in  weight  being  en- 
tirely due  to  shrinkage  from  natural  causes,  the  freight  charges, 
should  be  reckoned  upon  the  initial  weight  at  the  point  of  shipment. 
There  was  nothing  to  the  contrary  in  the  contract  of  shipment. 
^Comp.  W.  W.  Warwick,  Oct.  li,  1915.) 


TRANSPORTATION:  Excess  baggage  on  change  of  station. 

An  officer  on  change  of  station  had  13,915  pounds  of  household 
goods,  professional  books,  and  a  surrey,  loaded  in  one  car  and  paid 
for  on  a  carload  basis  at  the  rate  of  56  cents  per  cwt.  In  addition  he 
had  an  automobile  weigliing  1,600  pounds  shipped  in  another  car  at 
$2.52  per  cwt.  The  officer's  regulation  allowance,  including  the  pro- 
fessional books,  was  7,690  pounds.  It  was  contended  that  the  proper 
method  of  determining  the  excess  charges  was  to  treat  the  shipment 
as  an  entirety  and  to  proportion  the  aggregate  expense  on  the  basis 
of  weight  for  which  the  Government  and  the  officer  each  was  re- 
sponsible. 

Ileld^  that  the  officer's  regulation  allowance  being  less  than  a  car- 
load the  cost  required  to  be  paid  by  the  Government  was  the  pro- 
portion of  the  car  load  shipment  of  which  it  formed  a  part,  and 
that  the  excess  consisted  of  6,225  pounds  loaded  in  the  same  car  with 
the  regulation  allowance  and  the  automobile  loaded  in  another  car. 

(Comp.  W.  W.  Warwick,  Oct.  22,  1915.) 


COURT  DECISION. 

(Digest  prepared  in  tlie  office  of  the  Judge  Advocate  General.) 

MARINE  CORPS:  Jurisdiction  of  naval  court-martial  to  try  marine  for  an 
act  committed  while  he  was  detached  for  service  with  the  Army. 

A  private  of  the  Marine  Corps,  while  his  brigade  was  detached 
for  service  with  the  Army,  committed  an  act  made  an  offense  both 
by  the  rules  and  Articles  of  War  and  by  the  laws  and  regulations  for 
the  government  of  the  Navy.  The-  next  day  his  brigade  was  with- 
drawn from  detached  service  with  the  Army  and  he  was  brought 
before  a  naval  court-martial  for  trial,  was  tried,  convicted,  and  sen- 
tenced for  the  offense  as  a  violation  of  the  laws  and  regulations  of 
the  Navy.  At  the  trial  he  objected  to  the  jurisdiction  of  the  court 
upon  the  ground  that  at  the  time  the  offense  was  charged  to  have 
been  comxmitted  he,  as  a  private  in  a  brigade  of  the  Marine  Corps, 
was  serving  with  the  Army,  and  that  under  section  1621,  Revised 
Statutes,  he  was  not  subject  to  the  laws  and  regulations  of  the  Navy, 
which  objection  was  overruled.    He  sued  out  a  writ  of  habeas  corpus. 

Ileld^  that  the  accused  Avas  not  subject  to  the  rules  and  regulations 
of  the  Navy  when  he  committed  the  offense  charged,  and  that  a 
naval  court-martial  was  without  authority  of  law  to  impose  or  en- 
force the  sentence  pronounced. 

{United  States  ex  rel.  Davis  v.  Waller,  225  Fed.,  673.) 


526  '     DIGEST   OF    OPINIONS   OF   THE    JUDGE   ADVOCATE   GENEEAL 

NOTES  ON  ADMINISTRATION  OF  MILITARY  JUSTICE. 

(Prepared  under  the  direction  of  the  Judge  Advocate  General  of  the  Army 
upon  the  review  of  records  of  general  courts-martial  trials.) 

The  admonition  to  the  service  respecting'  the  administration  of  military- 
justice,  contained  in  Army  Reg'ulations  of  1835,  is  deemed  by  the 
Department  to  be  of  special  relevancy  to  existing  conditions  and  is  here 
published  for  the  information  and  guidance  of  all  concerned. 

"  The  discipline  and  reputation  of  the  Army  are  deeply  involved 
in  the  manner  in  which  military  courts  are  conducted  and  justice  ad- 
ministered. The  duties,  therefore,  that  devolve  on  officers  appointed 
to  sit  as  members  of  courts-martial,  are  of  the  most  grave  and  im- 
portant character — that  these  duties  may  be  discharged  with  justice 
and  propriety,  it  is  incumbent  on  all  officers  to  apply  themselves  dili- 
gently to  the  acquirement  of  a  competent  knowledge  of  military  law ; 
to  make  themselves  perfectly  acquainted  with  all  orders  and  regula- 
tions, and  with  the  practice  of  military  courts." — Par.  i,  Art.  35^ 
A.  R.,  1835. 


CHARGES:  As  to  certainty  in  alleging  place  of  crime. 

In  a  case  recently  tried  in  the  Philippine  Department  the  specifi- 
cation of  which  the  accused  was  convicted  alleged  that  the  crime  was 
committed  "  on  board  the  U.  S.  A.  T.  Thomas.''''  An  allegation  such 
as  this,  which  does  not  specify  whether  the  vessel  was  in  a  port  or  at 
sea,  might  in  a  case  where  there  is  a  question  as  to  whether  or  not  the 
offense  of  which  the  accused  is  convicted  is  punishable  under  the 
local  law  by  confinement  in  a  penitentiary,  be  an  embarrassment  in 
determining  upon  the  proper  disposition  of  the  prisoner,  and,  in  any 
case,  is  unsatisfactory. 


DESERTION:  No  4efense  that  soldier  intended  to  go  and  did  go  to  another 

post. 

In  a  case  tried  in  the  2d  Division  the  accused,  who  was  tried  for 
desertion,  was  found  guilty  of  absence  without  leave  only,  although 
the  evidence  was  clear  that  he  left  his  place  of  duty  with  intent  not 
to  return  and  surrendered  at  another  post.  The  reviewing  authority 
in  returning  the  record  for  revision  of  findings  and  sentence  prop- 
erly remarked  that  the  fact  that  the  accused  may  have  intended  to 
go  and  did  go  to  another  post  did  not  change  the  character  of  his  act. 


FINDINGS.  IMPROPER:  Evidence  of  lack  of  care  on  the  part  of  members 

of  the  court. 

In  a  case  recently  tried  in  the  Southern  Department  the  record  was 
returned  by  the  reviewing  authority  for  revision  of  the  findings  and 
sentence,  the  former  for  irregularity,  and  the  latter  because  such 
sentence  would  have  retained  in  the  service  a  man  convicted  of  a 
crime  involving  moral  turpitude. 

The  accused  in  this  case  was  tried,  inter  alia,  for  desertion,  and  the 
findings  under  that  charge  were  as  follows : 


DIGEST    OF    OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       527 

"  Of  the  specification  1st  charge  '  not  guilty,  but  guilty  of  absence 
without  leave.'  Of  the  1st  charge  '  not  guilty,  but  guilty  of  the  32d 
Article  of  War.' " 

These  findings  were  made  by  a  court,  the  majority  of  whose  mem- 
bers were  officers  of  long  experience,  and  are  explainable  only  on  the 
supposition  that  no  member  was  sufficiently  interested  in  the  prepa- 
ration of  the  record  to  see  that  it  was  free  at  least  from  such  palpable 
errors  as  here  noted. 


FINDINGS,  IMPROPER:  Resulting  in  unnecessary  delays. 

In  a  case  recently  tried  in  the  Philippine  Department  the  court 
found  the  accused  guilty  of  a  properly  drawn  specification  under  the 
21st  Article  of  War  and  then  proceeded  to  find  not  guilty  of  the 
charge  but  guilty  of  conduct  prejudicial  to  good  order  and  military 
discipline.  Upon  return  of  the  record  by  the  reviewing  authority 
for  correction  the  court  instead  of  revoking  its  former  finding  of  the 
specification  and  proceeding  to  a  new  finding  thereof  merely  excepted 
the  word  "  wilfully  "  in  the  finding  under  the  specification.  Because 
of  the  latter  meaningless  finding  it  was  necessary  to  return  the  record 
a  second  time  for  correction.  The  court  was  composed  of  officers  of 
considerable  length  of  service.  The  case  is  an  example  of  the  unnec- 
essary delay  caused  by  want  of  care  on  the  part  of  the  court. 


FINDINGS,  IMPROPER:  Trials  for  desertion,  absence  without  leave. 

In  a  case  recently  tried  in  the  2d  Division  the  evidence  showed 
that  the  accused,  who  was  tried  upon  a  charge  of  desertion  and  found 
"not  guilty,"  was  in  fact  absent  without  leave.  The  record  was  re- 
turned by  the  reviewing  authority  for  revision  in  this  regard  which 
was  accomplished.  Except  in  rare  cases  the  evidence  in  a  trial  for 
desertion  shows  that  the  accused  is  guilty  of  the  included  offense  of 
absence  without  leave  at  least,  and  that  he  merits  proper  punishment 
for  such  absence.  The  occasional  failure  of  courts  in  such  cases  to 
find  and  sentence  accordingly  is  one  of  the  causes  of  the  protracted 
average  periods  between  arrest  upon  charges  and  entering  upon  the 
execution  of  sentence  noted  in  annual  reports  of  Judge  Advocate 
General  for  1913,  1914.  and  the  current  year. 


INSANITY:  As  an  issue  should  be  determined  when  raised  in  a  trial. 

In  a  case  recently  tried  in  the  Eastern  Department  the  evidence 
of  record  was  such  as  to  raise  a  doubt  as  to  the  full  mental  respon- 
sibility of  the  accused,  who  was  convicted  of  disrespect  to  a  medical 
officer  and  of  disobedience  of  the  officer's  orders.  The  officer  himself 
testified  that  he  did  not  see  how  the  accused  could  talk  the  way  he  did 
and  be  otherwise  than  insane,  and  the  accused  testified  that  he  had 
been  an  inmate  of  the  Government  Hospital  for  the  Insane.  It  was 
the  duty  of  the  court  to  instruct  the  judge  advocate  to  submit  such 
evidence  as  was  available  as  to  the  mental  responsibility  of  the  ac- 
cused, and  if,  upon  the  whole  evidence,  the  court  had  reasonable 
doubt  as  to  his  mental  responsibility,  he  should  have  been  acquitted. 
The  trial  proceeded,  however,  to  conviction  and  sentence,  in  which 


628       DIGEST    OT   OPINIONS   OF   THE   JUDGE   ADVOCATE    GENERAL. 

the  court  exhibited  its  own  doubt  as  to  the  full  mental  responsibility 
of  the  accused  by  awarding  him  a  punishment  wholly  inadequate  for 
the  serious  offenses  of  which  it  convicted  him.  The  unexecuted  por- 
tion of  the  sentence  in  this  case  was  remitted  by  the  Secretary  of 
War.  

JUDGE  ADVOCATE:   Failure  in  Ms   duties,   resulting  in  miscarriage   of 
justice. 

In  his  action  upon  the  record  of  a  general  court-martial  a  reviewing 
authority  recently  disapproved  the  findings  of  guilty  upon  two  speci- 
fications, in  which  forgery  of  the  payees'  names  as  indorsements  on 
two  Government  checks  was  alleged,  because  of  a  lack  of  evidence  to 
sustain  the  findings;  and  he  remarked  that  a  miscarriage  of  justice 
had  resulted  in  that  case  because  of  failure  of  the  trial  judge  advocate 
to  try  the  case  properly. 

While  the  record  does  not  disclose  what  additional  material  evi- 
dence could  have  been  secured,  it  is  believed  from  the  record  that 
such  evidence  was  available;  it  does  appear,  however,  that  the 
presentation  of  the  case  by  the  judge  advocate  was  most  unskillful 
and  not  in  accordance  with  the  approved  practice.  He  introduced 
and  examined  witnesses,  whose  attendance  was  evidently  procured  at 
great  expense  to  the  Government,  and  it  is  apparent  that  he  failed 
to  elicit  from  them  all  pertinent  evidence  within  their  knowledge. 
It  is  also  seen  that  this  case  was  regarded  as  of  such  importance  as  to 
render  necessary  the  attendance  of  a  witness  from  the  office  of  the 
Auditor  for  the  War  Department,  who  traveled  several  hundred 
miles,  in  order  to  have  before  the  court  the  original  checks  in  ques- 
tion, yet  the  judge  advocate  neither  read  the  checks  as  evidence  be- 
fore the  court  nor  did  he  append  copies  thereof  to  the  record.  The 
original  checks  vshould  have  been  submitted  with  evidence  as  to  the 
signatures,  and  copies  thereof,  preferably  photographic  copies,  should 
have  been  made  and  appended  to  the  record. 

The  record  states:  "The  judge  advocate  then  exhibited  to  the  court, 
as  evidence  for  the  prosecution,  two  signatures  of  the  accused,  which 
were  admitted  by  him  to  be  signatures  in  his  own  handwriting."  No 
other  evidence  of  such  admission  by  the  accused  is  shown.  Neither 
the  signatures  nor  copies  thereof  were  appended  to  the  record. 

The  record  exhibits  such  an  inadequate  performance  of  duty  on  the 
part  of  the  judge  advocate  as  is  inexcusable  in  any  officer  of  the 
Army. 

JUDGE  ADVOCATE:   Failure  in  his  duty,   record  encumbered  by  irrele- 
vant testimony. 

In  a  case  recently  tried  at  Fort  Mills,  Corregidor,  P.  I.,  the  review- 
ing authority  remarked  in  its  action  that  "  It  is  evident  that  the  judge 
advocate  did  not  properly  prepare  his  case  and  present  it  to  the  court 
in  an  orderly  and  logical  manner."  The  occasion  for  this  remark  is 
one  not  infrequently  observed  in  records,  and  arises  from  the  fact 
that  the  trial  judge  advocate  fails  to  interview  his  witnesses  before 
putting  them  on  the  stand,  and  thereby  inform  himself  as  to  their 
exact  knowledge  of  the  facts  in  the  case,  with  the  result  that  much 
irrelevant  testimony  is  introduced  which  serves  only  to  encumber  the 
record  and  confuse  the  issues  of  fact  to  be  tried. 


DIGEST   OF    OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       529 

JUDGE  ADVOCATE :  Failure  in  his  duty  to  produce  evidence. 

In  a  case  recently  tried  at  Camp  Stotsenbnrg,  1^.  I,,  the  accused 
tvas  charged  with  desertion  and  remaining  absent  in  desertion  until 
apprehended  by  the  Philippine  Constabulary.  He  pleaded  not  guilty, 
which  cast  the  burden  of  proof  of  every  allegation  of  the  specifica- 
tion upon  the  prosecution.  He  was  found  guilty  of  absence  without 
leave  only  and  retained  in  the  service.  The  ti'ial  judge  advocate  failed 
to  secure  the  attendance  of  the  consiabulary  officer  or  soldier  con- 
nected with  the  apprehension  or  surrender  of  the  accused,  or  his 
deposition,  but  instead,  stated  to  the  court  that  upon  investigation 
he  was  satisfied  that  instead  of  being  apprehended,  as  stated  in  a 
letter  from  the  senior  inspector  of  constabulary,  the  accused  deliv- 
ered himself  up  for  transportation  to  a  post,  and  that  a  deposition 
from  the  inspector  was  not  considered  necessary.  The  court  ac- 
cepted this  statement  and  permitted  the  trial  to  proceed  without  the 
testimony  of  the  constabulary  officer.  The  evidence  in  this  case 
tended  so  strongly  to  prove  that  the  accused  intended  to  desert  that 
the  circumstances  concerning  his  return  to  military  control  were 
material  and  important  matters  which  should  have  been  laid  before 
the  court,  and  the  reviewing  authority  in  returning  the  record  for 
revision  properly  characterizes  the  action  of  the  court  and  trial  judge 
advocate  as  error. 

PLEA   OF   GUILTY:   Accused   given   erroneous  information  "by   court  re- 
specting punishment. 

It  is  observed  in  a  recent  case  that  a  reviewing  authority  com- 
mented upon  the  error  of  the  president  of  a  general  court-martial, 
who,  upon  a  plea  of  "  guilty  "  having  been  entered  by  an  accused, 
made  an  erroneous  statement  to  the  latter  as  to  the  limit  of  punish- 
ment possible  for  the  offense  of  which  he  had  pleaded  guilty.  The 
president  informed  the  accused  that  such  limit  was  "  confinement 
at  hard  labor  for  three  months  and  forfeiture  of  pay  for  two-thirds 
of  that  period;"  whereas,  the  maximum  limit  was  dishonorable  dis- 
charge, forfeiture  ot  all  pay  and  allowances,  and  confinement  at  hard 
labor  for  one  year. 

Proper  regard  for  the  rights  of  the  accused,  though  he  be  assisted 
by  counsel,  demands  the  exercise  of  more  care  than  was  here  dis- 
played by  the  president  of  the  court. 

In  two  cases  recently  tried  in  the  Eastern  Department,  the  accused, 
under  a  charge  of  desertion,  pleaded  not  giulty  of  desertion  but 
guilty  of  absence  without  leave.  The  president  of  the  court  informed 
the  accused  in  a  general  way,  but  without  reference  to  the  case  in 
hand,  that  a  plea  of  guilty  to  any  offense  was  an  admission  of  guilt 
and  that  in  so  pleading  he  subjected  himself  to  such  punishment  as 
might  be  deemed  adequate  by  the  court.  The  meaning  of  the  plea 
of  the  accused  and  the  extent  of  punishment  to  which  it  might 
subject  him  were,  therefore,  not  adequately  explained,  and  the  re- 
viewing authority  properly  remarked  in  orders  upon  the  failure  to 
comply  with  the  requirements  of  section  8,  Paragraph  II,  of  G.  O. 
70,  W.  D.,  1914,  that : 

"  In  each  case  tried  by  a  general  court-martial  in  which  the  accused 
enters  a  plea  of  guilty  it  shall  appear  of  record  that  the  meaning 

93668°— 17 34 


530       DIGEST   OP   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL. 

of  his  plea  and  the  extent  of  the  punishment  to  which  it  may  subject 
him  was  adequately  explained  to  the  accused  by  the  president  of  the 
court,  and  that  the  accused  was,  after  such  explanation,  asked  if  he 
desires  to  have  the  plea  of  guilty  stand.  If  he  replies  in  the  affirma- 
tive, the  plea  of  guilty  will  stand;  otherwise,  a  plea  of  not  guilty 
will  be  entered.  The  explanation  of  the  president  and  the  reply  of 
the  accused  thereto  shall  appear  upon  the  record  of  trial.  The  same 
rule  will  apply  in  cases  tried  by  special  court-martial  when  the  evi- 
dence heard  is  made  of  record.". 

In  a  case  recently  tried  in  the  2d  Division  the  accused  pleaded 
guilty  to  absence  without  leave  for  three  days,  the  maximum  punish- 
ment for  which  is  confinement  at  hard  labor  for  nine  days  and  for- 
feiture of  six  days'  pay.  The  president  of  the  court  in  explaining 
to  the  accused  that  upon  proof  of  five  or  more  previous  convictions, 
dishonorable  discharge  with  forfeiture  of  all  pay  and  allowances 
was  authorized  in  this  case,  added : 

"  The  court  may  also,  by  custom  of  the  service,  properly  adjudge 
in  addition,  confinement  at  hard  labor  for  three  months." 

These  added  remarks  were  erroneous  in  two  particulars,  viz,  as 
to  the  period  of  confinement  authorized  in  the  particular  case,  and  in 
stating  that  the  authority  therefor  was  "  custom  of  the  service." 

The  error  of  the  president  was  remarked  upon  by  the  reviewing 
authority  in  his  action  on  the  case,  and  was  one  which  could  have 
been  avoided  had  the  president  of  the  court  consulted  the  provisions 
of  G.  O.  70,  W.  D.,  1914. 

PLEA  OF  GUILTY:  Does  not  preclude  taking  of  evidence  to  determine 
degree  of  punishment. 

An  officer  was  convicted,  in  accordance  with  his  plea,  of  having 
unfitted  himself,  by  the  use  of  intoxicating  liquors,  for  an  important 
duty,  for  which  he  had  been  detailed  under  orders  of  the  War  De- 
partment, necessitating  his  admission  to  a  post  hospital.  He  was 
sentenced  to  be  reprimanded.  According  to  the  testimony  of  the 
accused  he  drank  intoxicating  liquor  for  several  tiays  on  account  of  a 
cold  and  slight  cough ;  he  did  not  insist  that  this  was  upon  the  ad- 
vice of  a  physician ;  nor  does  it  appear  that  he  even  sought  the  ad- 
vice or  services  of  a  physician  during  this  time,  though  three  medical 
officers  of  the  Army  were  available  and  the  accused  was  living  in  the 
same  building  with  one  of  them.  These  medical  officers  attended  the 
accused  after  his  admission  to  the  hospital. 

The  accused  was  the  only  witness  heard  upon  the  trial.  No  reason 
appears  of  record  as  to  why  the  evidence  of  these  medical  officers  was 
not  had  before  the  court ;  for  a  full  understanding  of  the  case  their 
evidence  was  necessary;  and  the  judge  advocate  and  the  court  failed 
to  do  their  full  duty  in  trying  the  case  upon  the  admissions  and  testi- 
mony of  the  accused  alone. 

Even  upon  the  showing  made  by  the  accused,  punishment  much 
more  severe  than  reprimand  should  have  been  imposed. 


RECORD:  Needless  errors  in,  evidencing  lack  of  care. 

In  a  case  recently  tried  in  the  Central  Department,  the  court  found 
accused  guilty  of  absence  without  leave,  under  a  charge  of  desertion, 
and  then  imposed  a  sentence  involving  a  period  of  confinement  twice 


DIGEST   OF    OPIISriONS  OF    THE   JUDGE   ADVOCATE   GENERAL.       531 

as  long  as  that  authorized  for  the  absence  without  leave,  and  more 
appropriate  for  desertion.  On  return  of  the  record  for  revision,  the 
finding  was  properl}^  corrected  to  one  of  guilty  of  desertion.  This 
case  is  one  of  a  considerable  number,  revealed  by  examination  of 
records  in  this  office  during  the  past  month,  in  which  delay  of  dis- 
position of  cases  has  occurred  because  of  irregularities  which  re- 
quired the  return  of  records  for  revision.  In  practically  every  case 
the  irregularities  and  consequent  delay  could  have  been  avoided  by 
the  exercise  of  reasonable  care  on  the  part  of  members  of  the  court, 
or  the  judge  advocate,  in  applying  the  plain  provisions  of  the 
Manual  for  Courts-Martial  during  the  proceedings,  or  by  carefully 
scrutinizing  the  record  before  forwarding  it  to  the  reviewing  au- 
thority. 

RECORD:  Needless  errors  in,  necessitating'  reconvening  court. 

In  a  case  recently  tried  in  the  Philippine  Department  the  accused 
under  a  charge  of  desertion  made  the  usual  and  prescribed  exceptions 
and  substitutions  in  the  specification  so  that  it  would  allege  absence 
without  leave  only  and  pleaded  under  the  charge  not  guilty  of  deser- 
tion but  guilty  of  absence  without  leave,  in  violation  of  the  32d 
Article  of  War.  The  court,  which  was  composed  of  officers  of  ex- 
perience, in  supporting  the  plea  of  the  accused,  instead  of  following 
the  form  prescribed,  found  him  of  specification  and  charge  "  guilty 
as  plead."  In  preparing  its  record  the  court  recorded  as  present 
at  assembling  for  trial  the  name  of  an  officer  who  had  been  detailed 
as  judge  advocate  but  relieved  prior  to  the  meeting  of  the  court,  in- 
serted a  mimeograph  copy  of  the  orders  convening  the  court  and 
modifying  the  detail,  instead  of  copying  them,  and  omitted  the  com- 
pany and  regiment  of  the  accused  from  the  sentence,  all  of  which 
caused  unnecessary  delay  and  made  it  necessary  for  the  convening 
authority  to  order  the  court  to  be  reconvened  for  correction  of  its 
record. 

RECORD    OF    TRIAL:    Incomplete,    should    be    returned    by    reviewing 
authority  for  correction. 

In  a  case  recently  tried  in  the  Southern  Department,  the  review- 
ing authority  remarked  that  a  plea  to  one  of  the  specifications  was 
omitted  from  the  record  but  that  from  evidence  in  the  case  it  might 
properly  be  assumed  that  a  plea  of  not  guilty  w^as  entered.  The 
court  which  tried  the  case  could  have  been  reconvened  to  make  its 
record  show  whether  or  not  there  was  in  fact  a  plea  entered  to  the 
specification  in  question.  It  happens  that  the  punishment  in  this 
case  was  a  light  one  for  any  one  of  the  three  specifications  of  which 
the  accused  was  convicted,  but  it  is  obvious  that  embarrassment  in 
the  administration  of  military  justice  might  arise  from  failure  to 
make  a  record  conform  to  the  facts  in  a  trial. 


SENTENCE,    INADEQUATE:    OflB.cer    convicted    of    mistreatment    of    en- 
listed men. 

An  organization  commander  was  recently  convicted  by  general 
court-martial  of  mistreatment  of  enlisted  men  of  his  command,  the 
mistreatment  including  (1)  the  use  of  pi'ofane  language  toward  cer- 


532        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

tain  of  them,  and  (2)  the  inflicting  of  humiliating  correction  upon 
one  of  them  by  causing  his  mouth  to  be  washed  with  soap  and  water, 
facing  liim  toward  a  wall  and  requiring  him  to  assume  certain  con- 
strained positions. 

These  punishments  transcend  any  disciplinary  authority  vested  in 
organization  commanders  recognized  by  paragraph  953,  A.  E.  They 
have  not  that  element  of  excuse  which  would  be  present  if  the  or- 
ganization commander  had  been  dealing  with  mutiny  or  mutinous 
conduct  which  is  not  suggested  by  the  record.  They  exhibit  the 
organization  commander  as  himself  lacking  that  self  control  without 
which  capacity  to  control  others  may  not  be  expected.  The  case 
was  one  calling  for  much  severer  punishment  than  the  reprimand 
imposed.  The  reviewing  authority's  action  in  carrying  out  the  repri- 
mand was  limited  in  substance  to  an  expression  of  the  belief  that 
the  anxiety  caused  the  organization  commander  by  the  investigation 
and  trial,' together  with  the  admonition  conveyed  by  the  issuance 
of  the  order,  constituted  a  sufficient  reprimand,  and  shows  failure  on 
his  part  to  appreciate  the  gi-avity  of  the  offense.  The  terms  in  which 
the  reprimand  was  administered  are  in  effect  an  excuse  for  not  carry- 
ing out  the  sentence  imposed. 


SENTENCE    OF    DISHONORABLE    DISCHARGE:    Suspension    of,    when 

proper. 

The  annual  reports  of  the  judge  advocate  of  departments  and  other 
commands  having  general  court-martial  jurisdiction  for  the  fiscal 
year  1915  reveal  that  in  the  whole  Army  there  were  410  cases,  in 
which  sentence  of  dishonorable  discharge  was  suspended  by  the  re- 
viewing authority,  and  that  280  of  these  cases  were  so  acted  upon 
by  the  commander  of  one  department.  This  number  is  39.77  per  cent 
of  all  the  sentences  of  dishonorable  discharge  imposed  by  courts  of 
that  command  during  the  year.  It  is  believed  that  a  careful  con- 
sideration of  the  records  of  trial  will  not  justify  supsension  of  sen- 
tence in  so  high  a  percentage  of  cases. 

Paragraph  7,  G.  O.  No.  70,  W.  D.,  1914,  provides  that  a  sentence 
of  dishonorable  discharge  will  be  suspended  only  "  whenever  the 
character  of  the  offense  for  which  the  sentence  is  imposed  and  the 
facts  developed  by  the  evidence  indicate  that  there  is  a  probability 
of  reclaiming  the  soldier  to  honorable  service."  On  the  other  hand, 
while  the  particular  department  commander  probably  used  the  power 
of  suspension  too  freely,  the  fact  that  the  suspensions  in  this  depart- 
ment were  68.3  per  cent  of  the  whole  number  of  suspensions  would 
seem  to  indicate  that  other  department  commanders  have  not  availed 
themselves  of  the  authority  in  proper  cases. 


BULLETIN  39. 

Buij^tinI  war  department, 

No.  39.  J  WASiiiNCiTON,  December  7,  1915. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army,  for  the  month  of  November,  1915,  together  with  a  col- 
lection of  notes  on  military  justice  prepared  under  the  direction  of 
the  Judge  Advocate  General  of  the  Army,  is  published  for  the 
information  of  the  service  in  general. 
[2255370  J— A.  G.  O.] 

By  order  of  the  Secretary  of  War  : 

H.  L.  SCOTT, 
Major  General^  Chief  of  Staff. 
Official  : 
H.  P.  McCATN, 

The  Adjutant  General.  . 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

CIVILIAN  EMPLOYEES:  Leaves  of  absence  to  attend  military  camps  of 
instruction. 

The  question  was  presented  whether  Government  employees  desir- 
ing to  attend  business  men's  camps  of  military  instruction  might  be 
permitted  to  do  so  on  a  pay  status  without  having  the  time  so  spent 
charged  against  their  regular  annual  leaves.  It  was  pointed  out  that 
Government  employees  belonging  to  the  Organized  Militia  of  the 
District  of  Columbia  enjoy  such  a  privilege  while  on  duty  with  the 
Militia.  By  section  49  of  the  District  of  Columbia  militia  act  of 
1889  (25  Stat.,  779),  it  was  provided  that  officers  and  employees  of 
the  United  States  and  of  the  District  of  Columbia  w^ho  are  members 
of  the  National  Guard  shall  be  entitled  to  leave  of  absence  from 
their  respective  duties,  without  loss  of  pay  or  time,  "  on  all  days  of 
any  parade  or  encampment  ordered  or  authorized  under  the  pro- 
visions of  this  act." 

Held.,  that  the  provisions  of  the  act  of  1889  referred  to  apply  only 
to  Government  employees  belonging  to  the  National  Guard  of  the 
District  of  Columbia,  and  that,  there  being  no  similar  statutory  pro- 
vision in  respect  to  other  employees,  any  absence  from  duty  for  the 
purpose  referred  to  would  have  to  be  charged  against  their  annual 
leave  or  without  pay  if  the  annual  leave  be  exhausted. 

(58-400,  J.  A.  G.,  Nov.  20,  1915.) 


DESERTERS:  Restoration  to  duty  as  affecting  forfeiture  of  deposits. 

In  the  case  of  a  deserter  sentenced  to  dishonorable  discharge  and 
to  a  term  of  imprisonment  and  who  received  an  honorable  restora- 
tion to  duty  under  section  1352,  Revised  Statutes,  the  question  was 

533 


534       DIGEST    OF    OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL. 

presented  whether  deposits  which  he  had  made  with  a  quartermaster 
prior  to  his  desertion  were  restored  to  him.  (See  Bui.  No.  8,  W.  D., 
191-i,  page  10.)  By  the  act  of  June  12,  1906  (3-t  Stat.,  246),  it  was 
provided  that  soldiers'  deposits  "  shall  be  forfeited  for  desertion." 

Ileld^  that  a  restoration  to  duty  in  such  cases  does  not  affect  the 
forfeitures. 

(80-162,  J.  A.  G.,  Nov.  2,  1915.) 


DETACHED  SERVICE  LAW:  As  to  credit  for  service  with  machine-gun 
troop  of  Cavalry. 

A  second  lieutenant  who  had  performed  duty  with  a  machine- 
gun  troop  of  Cavalry  applied  to  have  such  service  credited  as  service 
with  troops  within  the  meaning  of  the  detached-service  law.  It  w^as 
pointed  out  that  the  old  machine-gun  platoon  of  a  regiment  of 
cavalry  has  been  superseded  by  a  machine-gun  troop,  so  that  the  lan- 
guage of  the  general  law  (act  of  August  24,  1912,  37  Stat.,  645) — ■ 
"  duty  *  *  *  with  a  troop,  battery,  or  company  " — would  appear 
to  be  applicable. 

Eeld^  that  the  expression  "  troop,  battery,  or  company  "  was  in- 
tended to  apply  only  to  organizations  so  designated  by  statute,  and 
not  to  any  group  which  might  from  time  to  time  be  termed  a  troop 
or  company  by  the  War  Department;  that  the  regimental  machine- 
gun  troop  or  company  is  an  organization  unknown  to  the  law  and 
therefore  not  included  in  the  class  defined  by  Congress  when  the 
original  detached-service  law  was  enacted. 

(6-124.5,  J.  A.  G.,  Nov.  10,  1915.) 


ENLISTED  MEN:  Purchase  of  discharge. 

Discharge  by  purchase  was  authorized  by  the  Act  of  June  16,  1890 
(26  Stat.,  158),  which  provides  that — 

"  In  time  of  peace  the  President  may,  in  his  discretion  and  under 
such  rules  and  upon  such  conditions  as  he  shall  prescribe,  permit 
any  enlisted  man  to  purchase  his  discharge  from  the  Army." 

The  rules  prescribed  are  contained  in  General  Orders  No.  31,  War 
Department,  1914,  and  extend  the  privilege  of  purchase  to  "  any 
enlisted  man  who  has  completed  one  j^ears  service  as  such,"  with 
the  restriction  that  "  credit  will  not  be  given  *  *  *  fQ^  a^y 
period  of  time  during  which  a  soldier  has  been  in  desertion  or  absent 
without  leave." 

Held^  that  the  term  "  one  year's  service  "  as  used  in  the  above  men- 
tioned Order  No,  31  is  to  be  construed  as  including  all  time  not 
excluded  by  the  restriction  that  "credit  will  not  be  given  *  *  * 
for  any  period  of  time  during  which  a  soldier  has  been  in  desertion 
or  absent  without  leave." 

(34-052,  J.  A.  G.,  Nov.  17,  1915.) 


PRIVATE  MOUNTS:  Shipment  of,  at  public  expense. 

An  officer  who  had  resigned  from  the  Army  requested  the  shipment 
of  his  private  mount  at  public  expense  as  an  incident  to  his  change  of 
station  made  before  his  resignation.    The  shipment  of  private  mounts 


DIGEST   OF   OPINIO ISrS   OF   THE   JUDGE   ADVOCATE   GENERAL.       535 

is  governed  by  paragraph  1098,  Army  Regulations,  and  among  the 
conditions  is  the  restriction  that  the  horses  must  be  owned  by  the 
officer  and  "  ai-e  intended  to  be  used  by  him  at  liis  new  station  in  the 
public  service." 

Held^  that  the  effect  of  the  regulation  is  that  the  right  of  shipment 
of  private  mounts  at  public  expense  is  not  a  pei'sonal  one  which  be- 
comes vested  in  the  officer  as  a  necessary  incident  of  a  change  of 
station,  but  on  the  contrary  is  conditioned  upon  the  officer's  intended 
use  of  the  horses  in  the  public  service,  and  this  intention  must  exist 
when  the  shipment  is  made. 

(64-330,  J.  A.  G.,  Nov.  9,  1915.) 


NOTES  ON  ADMINISTRATION  OF  MILITARY  JUSTICE. 

(Prepared  under  the  direction  of  tlie  Judge  Advocate  General  of  the  Army 
upon  the  review  of  records  of  general  courts-martial   trials.) 

DELAY:  Due  to  carelessness  of  court  or  of  judge  advocate. 

Delays  in  final  action  by  the  reviewing  authority  because  of  care- 
lessness on  the  part  of  the  court  or  of  the  judge  advocate  are  fre- 
quently found.  In  one  recent  case  the  record  failed  to  account  for 
one  member  of  the  court,  while  another  was  reported  as  both  present 
and  absent ;  thirteen  days  were  lost  through  the  necessity  of  returning 
the  record  for  correction.  In  a  sentence  which  was  intended  to 
impose  dishonorable  discharge,  forfeiture,  and  confinement,  the  court 
omitted  the  words  "  discharged  "  and  "  pay  and."  Before  the  record 
was  received  back  for  correction,  changes  of  station  had  reduced  the 
court  below  the  number  required  by  law,  and  it  was  necessary  to 
order  one  of  the  members  back  from  a  distant  station  to  make  up  the 
required  number.  The  time  thus  lost  was  one  month  and  twenty- 
five  days.  In  one  case  the  court  omitted  to  record  a  finding  under 
one  of  the  specifications,  and  final  action  was  thereby  delayed  thirty 
days.  Failure  to  follow  the  prescribed  form  for  sentences  caused 
delays  of  seven  days  in  each  of  two  recent  cases,  and  of  six  days  in 
another. 


DEPOSITIONS:    Necessity   of   covering-   all    essential   facts   by   interroga- 
tories. 

In  a  case  of  desertion  recently  tried,  it  was  charged  that  the  accused 
was  apprehended  at  a  certain  place  on  a  certain  date,  but  the  judge 
advocate,  in  preparing  interrogatories  for  depositions,  failed  to  in- 
clude any  questions  concerning  these  allegations.  The  accused 
pleaded  not  guilty,  thus  casting  the  burden  of  proof  of  every  allega- 
tion of  the  specification  upon  the  prosecution.  The  court  found  the 
accused  guilty  as  charged.  On  return  of  the  record  by  the  reviewing 
authority  calling  attention  to  the  lack  of  evidence  as  to  the  facts  in 
question,  the  court  made  amendments  resulting  in  a  finding  that  the 
accused  remained  absent  in  desertion  "  until  some  date  after  August 
1,  1914."  The  reviewing  authority  accepted  this  unusual  finding  for 
the  purpose  of  the  sentence,  assumed,  as  being  most  favorable  to  the 
accused,  that  he  surrendered,  approved  the  sentence  and  reduced  the 


536        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEBAL. 

])eriod  of  confinement  imposed.  This  delay  thus  caused  in  final 
,-tion  on  the  case  was  sixteen  days. 
In  two  cases  of  desertion,  where  the  evidence  as  to  the  absence  was 
obtainable  onlv  bv  deposition,  the  judge  advocate  asked  the  question 
whether  the  accused  absented  himself  on  such  a  day,  but  made  no 
inquirv  as  to  whether  the  absence  was  without  leave.  It  so  hap- 
pened'that  the  accused  in  each  of  these  case's  pleaded  giiilty  to  the 
unauthorized  absence:  otherwise,  serious  delay,  and  possibly  a  mis- 
carriage of  justice,  would  have  resulted. 


FIXDINGS:  Making'  such,  amendmeiits  that  specification  fails  to  state  an 

o3ens€. 

In  a  case  recently  tried  in  the  Southern  Department,  the  record 
was  returned  by  the  reviewing  authority  because  under  a  specifica- 
tion alleging  theft  the  court  found  the  accused  not  guilty  of  the  theft 
but  guilty  of  having  "  guilty  knowledge  '*  of  the  same.  The  review- 
ing authority  expressed  the  view  that  under  the  finding  of  the  court 
the  specification  did  not  state  a  military  offense.  The  court  then 
amended  its  finding  to  show  that  the  accused  having  knowledge  of 
the  theft  failed  to  make  a  report  thereof.  The  delay  in  the  final  dis- 
position of  the  case  on  account  of  the  erroneous  finding  of  the  court 
was  about  twelve  days. 

Under  a  specification  that  the  accused  did  feloniously  take,  steal, 
and  carry  away  a  certain  article,  the  court  found  the  accused  guilty 
except  of  the  words  "  feloniously"  and  "steal."  and  of  the  excepted 
words  not  guilty.  The  specification  as  amended  does  not  state  an 
offense.  It  was  therefore  necessary  for  the  reviewing  authority  to 
return  the  record  for  revision,  and  the  court  then  properly  substi- 
tuted the  word  "  unlawfully  "  for  "  feloniouslv." 


Ejz-CORD:  Unnecessary  return  of. 

In  a  case  recently  examined,  the  record  shows  that  the  reviewing 
authority  returned  it  for  the  reason  that  when  the  accused  changed 
his  plea  to  a  specification  fi-om  not  guilty  to  guilty  the  court  allowed 
the  plea  of  not  guilty  to  the  charge  to  remain  of  record.  The  time 
lost  before  final  action  of  the  reviewing  authority  was  about  seven 
days.  While  there  is  no  disposition  to  criticise  in  matters  within  the 
discretion  of  reviewing  authorities,  it  is  suggested  that  where  a  defect 
in  pleading  is  cured  by  the  finding,  as  it  was  in  this  case,  the  return 
of  the  record  is  unnecessary  and  serves  only  to  prolong  the  period 
between  the  arrest  of  the  accused  upon  charges  and  his  entering  upon 
the  execution  of  his  sentence. 


SPECIFICATIONS :  Necessity  for  precision  in  drawing  of. 

In  a  case  recently  tried  in  the  Central  Department,  the  accused 
pleaded  guilty  to  two  specifications,  each  alleging  that  he  committed 
"  an  act  of  sexual  perversion "'  without  any  wor(^  descriptive  of  the 
act.  There  was  no  evidence  taken  in  the  trial.  The  court  imposed  a 
sentence  of  dishonorable  discharge,  total  forfeiture,  and  confinement 
at  hard  labor  for  two  years.    The  reviewing  authority  designated  a 


DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       537 

penitentiary  as  the  place  of  confinement,  but  as  there  Avas  nothing 
in  the  record  of  trial  to  indicate  that  the  accused  had  committed  an 
offense  punishable  by  penitentiary  confinement  under  the  law  of  the 
State  or  of  the  United  States,  it  became  necessary  to  change  the 
designation  to  the  United  States  Disciplinary  Barracks,  Fort  Leaven- 
worth, Kans.  This  case  is  noted  as  showing  that  in  all  cases  of  sexual 
perversion  the  precise  acts  constituting  the  oti'ense  should,  if  possible, 
be  ascertained  and  set  forth  in  the  si)ecifications  in  order  that  it  may 
be  definitely  ascertained  if  the  oU'eiise  be  one  punishable  by  confine- 
ment in  a  penitentiary. 


SENTENCE:  Failure  to  follow  forms  prescribed  in  G.  0.  70,  W.  D.,  1914. 

In  a  case  recently  tried  in  the  Philippine  Department,  the  record 
was  returned  by  the  reviewing  authority  because  the  court  in  award- 
ing a  sentence,  involving  confinement  at  hard  labor  and  forfeiture, 
instead  of  following  the  form  prescribed  for  such  sentence  in  G.  O. 
No.  70,  W.  D.,  1914,  sentenced  the  accused  "to  be  confined  at  hard 
labor  at  such  place  as  the  reviewing  authority  may  direct  for  forty- 
eight  days  and  to  forfeit  thirty-two  days  of  his  pay.''  There  seems 
to  be  no  reasonable  excuse  for  the  failure  of  a  court  composed  of  ex- 
perienced officers,  as  this  one  M'as,  to  comply  with  the  plain  provisions 
of  the  order  in  question. 


SENTENCE :   Failure  to  include  hard  labor  in  connection  with  extended 
periods  of  confinement. 

In  three  cases  recently  examined  in  this  office,  the  sentences,  which 
involved  long  periods  of  confinement,  did  not  include  hard  labor. 
Because  of  these  defectiAC  sentences,  it  was  necessary  for  the  review- 
ing authority  to  return  the  record  for  revision,  resulting  in  delays  of 
five,  seven,  and  eight  days,  respectively,  in  the  final  disposition  of 
these  cases. 


SENTENCE:  Relation  to  finding  and  evidence. 

In  a  case  tried  in  the  Eastern  Department,  the  accused,  a  retired 
soldier,  pleaded  guilty  to  a  minor  ofi'ense,  which,  as  explained  to  him 
by  the  president  of  the  court,  justified  a  sentence  to  forfeit  $15.  He 
was  convicted  of  this  ofiense  and  also  of  the  larceny  of  $75,  and  was 
sentenced  to  be  dishonorably  discharged,  forfeiting  all  pay  ana 
allowances.  Eight  days  thereafter,  before  the  record  had  been  for- 
warded to  the  reviewing  authority,  the  court  revoked  its  former  sen- 
tence and  sentenced  the  accused  to  confinement  at  hard  labor  for  18 
months  and  forfeiture  of  two-thirds  of  his  pay  for  the  same  period. 
The  reviewing  authority  returned  the  record  "  for  reconsideration 
and  such  consequent  revision,  if  any,  of  findings  or  sentence,  or  both, 
as  may  be  deemed  appropriate,"  with  the  following  further  remarks: 

"The  attention  of  the  court  is  invited  to  the  fact  that  the  residt 
of  approval  of  the  sentence  finally  imposed  in  this  case  would  be  to 
retain  on  the  retired  list,  as  a  recipient  of  retired  pay,  a  convicted 
thief.  If  the  court  was  moved  to  the  adoption  of  the  sentence  im- 
posed in  this  case  by  a  reasonable  doubt  of  the  guilt  of  the  accused  of 
the  second  specification,  such  doubt  should  have  caused  a  finding  of 
not  guilty  thereon.    If,  however,  the  accused  is  guilty  as  charged,  it 


538       DIGEST   OF   OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL. 

would  seem  that  there  can  be  no  doubt  whatever  as  to  the  impro- 
priety of  retaining  him  on  the  rolls  as  a  pensioner  of  the  Govern- 
ment." 

The  court  thereupon  revoked  its  former  findings,  and  acquitted  the 
accused  of  larceny,  but  sentenced  him  to  confinement  at  hard  labor 
for  six  months  and  forfeiture  of  two-thirds  of  his  pay  for  a  like 
period. 

The  court  was  well  within  its  authority  in  reassembling,  upon  its 
own  motion,  to  correct  any  error  of  judgment  as  to  finding  or  sen- 
tence so  long  as  the  case  was  before  it.  But  the  procedure  actually 
followed  in  this  case  indicates  vacillation  not  creditable  to  the  admin- 
istration of  justice.  First  we  have  a  conviction  of  grand  larceny  and 
a  sentence  of  dishonorable  discharge  and  forfeiture  but  without  con- 
finement at  hard  labor,  which  is  usually  and  properly  imposed  where 
the  otfense  of  which  the  accused  is  convicted  is  of  such  gravity ;  sec- 
ond, the  revocation  of  this  sentence  and  the  substitution  therefor  of 
a  sentence  of  confinement  at  hard  labor  for  a  prolonged  period  (18 
months),  with  forfeiture  of  two-thirds  of  his  pay  for  the  same  period, 
but  without  dishonorable  discharge,  the  elfect  of  which,  if  approved, 
would  have  been  to  leave  a  convicted  felon  on  the  rolls  of  the  Army; 
third,  the  revocation  of  this  latter  sentence  and  of  the  finding  upon 
which  it  was  based,  and  the  substitution  therefor  of  a  finding  of  not 
guilty  of  larceny  and  guilty  of  a  minor  offense  punishable  by  forfeit- 
ure of  $15,  for  which,  however,  the  excessive  sentence  of  six  months' 
confinement  at  hard  labor  and  forfeiture  of  two-thirds  of  his  pay  for 
the  same  period  was  imposed.  This  final  action  of  the  court  has  the 
appearance  of  a  compromise  between  a  finding  of  guilty  and  one  of 
not  guilty  on  the  graver  offense,  and  the  procedure,  taken  as  a  whole, 
indicates  that  the  court  felt  that  a  retired  enlisted  man  convicted  of 
felony  was  to  be  treated  with  greater  leniency  than  an  enlisted  man 
on  the  active  list  convicted  of  a  similar  offense.  It  was  the  clear  duty 
of  the  court,  having  acquitted  the  accused  of  grand  larceny,  to  pro- 
ceed to  the  imposition  of  a  sentence  as  though  that  offense  had  never 
been  charged,  and  any  belief  on  the  part  of  the  court  that  he  was 
guilty  thereof,  should  not  have  influenced  the  amount  of  punish- 
ment to  be  adjudged.  A  sentence  based  on  evidence  which  the  court 
deems  insufficient  to  convict  is  illogical  and  palpably  inconsistent 
with  elementary  principles  of  justice,  and,  of  course,  no  distinction 
as  to  punishment  based  on  conviction  of  felony  should  be  made  be- 
tween active  and  retired  enlisted  men. 


WITlsrESSES :  Testimony  of  wife  against  husband  as  witness  in  cases  of 
personal  abuse. 

^  In  the  case  of  an  officer  recently  tried,  the  accused  was  charged, 
inter  alia,  of  committing  a  number  of  acts  of  personal  abuse  of  his 
^vlte.  When  the  prosecution  offered  her  testimony,  there  was  objec- 
tion on  the  part  of  the  defense  on  the  ground  of  her  incompetency  as 
a  witness.  The  trial  judge  advocate  ably  presented  to  the  court  the 
present  state  of  the  law,  which  regards  a  wife  as  a  competent  witness 
agamst  her  husband  in  cases  of  personal  abuse,  but  the  court  ex- 
cluded her  as  such  except  for  the  purpose  of  testifying  to  one  specifi- 
cation The  reviewing  authority  pointed  out  the  error  of  the  court 
in  excluding  the  wife  as  a  witness  as  to  the  other  acts  charged. 


BULLETIN    1. 

(Bulletin  No.  41  is  the  last  of  the  series  for  1915.) 

Bulletin  1  WAR   DEPARTMENT, 

No.  1.     J  Washington,  January  11^  1916. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army,  for  the  month  of  December,  1915,  and  of  certain  deci- 
sions of  the  Comptroller  of  the  Treasury  and  of  courts,  together 
with  a  collection  of  notes  on  military  justice  prepared  under  the 
direction  of  the  Judge  Advocate  General  of  the  Army,  is  published 
for  the  information  of  the  service  in  general, 
[2255370  K— A.  G.  O.] 

By  order  or  the  Secretary  of  War: 

H.  L.  SCOTT, 

Major  General,  Chief  of  Staff. 
Official  : 

H.  P.  McCain, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

A  CORRECTION. 

On  page  8  of  Bulletin  No.  43,  War  Department,  1914,  in  the  case 
reported  under  the  heading  "  Reenlistment :  After  four  years'  service 
and  passing  to  the  reserve,"  insert  the  word  "  not "  in  the  third  para- 
graph, first  line,  between  the  words  "  had  "  and  "  been."  The  lan- 
guage should  be,  "  Held,  that  a  soldier  who  had  not  been  reenlisted," 
etc. 

ENLISTED  MEN:  As  to  making  up  lost  time;  Army  Reserve. 

In  the  case  of  enlisted  men  to  be  furloughed  to  the  Army  Reserve 
who  have  lost  time  from  service  by  reason  of  absence  without  leave 
(Act  of  May  11,  1908,  35  Stat.,  109),  or  by  reason  of  the  use  of  intem- 
perate drugs,  alcoholic  liquors,  etc.,  or  confinement  awaiting  trial  re- 
sulting in  conviction  (Act  of  April  27,  1914,  37  Stat.,  590),  the  ques- 
tion was  presented  whether  they  were  required  to  make  up  the  time 
so  lost  before  being  furloughed  to  the  Army  Reserve,  or  after. 

Held,  that  it  was  clearly  the  purpose  of  the  acts  mentioned  to 
obtain  from  enlisted  men  the  measure  of  service  contemplated  by 
their  enlistment  contracts ;  that  the  Army  Reserve  Act  providing  for 
seven-year  enlistments  requires  a  specified  number  of  years'  service 
and  that  a  soldier  is  not  eligible  for  furlough  to  the  Army  Reserve 
until  he  has  completed  the  full  service  period  of  three  or  four  years, 
as  the  case  may  be,  including  any  time  lost  within  the  meaning  of 
the  above-mentioned  acts. 

(34-052,  J.  A.  G.,  Dec.  13,  1915.) 

539 


540        DIGEST    OF    OPINIONS    OF    THE    JUDGE   ADVOCATE    GENEBAL. 

HEAT  AND  LIGHT :   Allowances  to  families  of  oflacers  on  temporary  duty. 

In  the  case  of  officers  transferred  from  one  command  to  another 
wliile  on  temporary  dutv  on  the  Mexican  border,  it  was  suggested 
fhat  such  a  change  "''  in  most  every  case  makes  a  change  of  permanent 
station  "  resulting  in  "  placing  many  officers'  families  in  such  a  posi- 
tion that  they  cannot  draw  the  officers'  heat  and  light  allowance" 
under  existing  regulations,  which  provide  that  an  officer's  family  is 
entitled  to  draw  his  heat  and  light  allowance  only  at  his  permanent 
or  temporary  station. 

Held.,  that  the  transfer  of  an  officer  from  one  command  to  another 
in  the  temporary  service  on  the  Mexican  border  should  not  be  re- 
garded as  if  so  facto  a  change  of  permanent  station,  and  that  for  the 
jiurposes  of  fuel  and  light  allowances  for  the  officer's  family  at  his 
permanent  station  their  status  should  not  be  disturbed  until  there 
has  been  an  actual  change  of  permanent  station  by  the  officer. 

(72-315,  J.  A.  G.,  Dec.  21,  1915.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

GRATUITY:   As  to  additional  pay  for  mounts  of  officer  killed  in  aviation 
accident. 

It  is  provided  by  the  Act  of  July  18,  1914  (38  Stat.,  516),  that  in 
the  case  of  an  officer  or  enlisted  man  killed  in  an  aviation  accident 
not  the  result  of  his  own  misconduct,  there  shall  be  paid  to  his  widow 
or  other  designated  beneficiary  "  an  amount  equal  to  one  year's  pay 
at  the  rate  to  which  such  officer  or  enlisted  man  was  entitled  at  the 
time  of  the  accident  resulting  in  his  death." 

Ileld^  that  the  gratuity  authorized  by  this  act  includes  pay  for 
mounts  where  the  officer  was  entitled  to  additional  pay  for  mounts 
at  the  time  of  the  accident  resulting  in  his  death.  (14  Comp.  Dec, 
851.)  Held  further^  that  this  ruling  does  not  affect  other  decisions 
holding  that  additional  pay  for  mounts  is  not  pay  proper  within 
the  laws  granting  additional  pay  for  foreign  service. 

(Comp.  W.  W.  Warwick,  Dec.^4,  1915.) 


PAY  AND  ALLOWANCES:  As  to  pay  of  officer  for  mounts  while  on  leave 
of  absence  with  half  pay. 

The  question  was  presented  whether  an  officer  of  the  Army  was 
entitled  to  pay  for  moimts  for  time  he  was  on  leave  of  absence  with 
half  pay.  In  the  case  under  consideration  the  officer  was  duly 
mounted,  and  he  retained  his  horses  at  his  post  during  a  leave  of 
absence  of  three  months,  two  months  of  which  was  with  full  pay  and 
one  month  with  half  pay  as  provided  bv  section  1265,  Kevised  Statutes, 
and  the  Act  of  July  29,  1876  (19  Stat.^  102).  Paragraph  1274,  Army 
Regulations,  provides  that  officers  do  not  forfeit  the  right  to  addi- 
tional pay  for  mounts  by  reason  of  ordinavy  leave.  Pay  for  mounts 
is  regarded  as  in  the  nature  of  an  allowance  and  not  as  pay  proper 
(21  Comp.  Dec,  848),  and,  following  the  rule  as  to  commutation  of 
quarters  (A.  R.  1301). 


DIGEST   OF    OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL.       541 

Held^  that  the  officer  was  not  entitled  to  pay  for  mounts  for  the 
time  he  was  in  a  half  pay  status;  that  the  half  pay  status  is  not  such 
a  status  as  requires  or  justifies  a  liberal  constructi(m  of  statutes  relat- 
ing to  pay  and  commutation,  and  that  if  an  officer  chooses  to  extend 
his  ordinary  leave  and  put  himself  in  a  half  pay  status,  he  can  not 
reasonably  expect  his  allowances,  or  pay  in  the  nature  of  an  allow- 
ance, to  continue. 

(Comp.  W.  W.  Warwick,  Dec.  4,  1915.) 


DECISIONS  OF  COURTS. 
(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

CONTRACTS:   Provisions  of  section  3744,  Revised  Statutes,  construed. 

In  a  suit  b,y  the  Government  against  the  New  York  and  Porto  Rico 
Steamship  Company  to  recover  th©  excess  cost  of  procuring  trans- 
portation of  coal  for  the  Navy  Department,  over  that  at  which  the 
defendant  had  agreed  through  correspondence  to  transport  it,  the 
ground  of  defense  was  that  the  informal  agi-eement  not  having  been 
embodied  in  a  formal  contract  in  accordance  with  section  3744, 
Revised  Statutes,  was  void  and  unenforceable.  By  this  section  it  is 
made  the  duty  of  the  Secretaries  of  War,  the  Navy,  and  the  Interior 
to  cause  every  contract  made  by  their  authority  on  behalf  of  the 
Government  "  to  be  reduced  to  writing,  and  signed  by  the  contracting 
parties  with  their  names  at  the  end  thereof";  all  the  copies  and 
papers  in  relation  to  the  same  to  be  attached  together  by  a  ribbon 
and  seal,  etc. 

Held^  that  this  statute  is  for  the  protection  of  the  Government 
against  possible  frauds  upon  it  by  its  officers;  that  no  such  protection 
is  needed  by  a  private  person  against  a  written  undertaking  signed 
by  himself,  and  that  while  it  is  established  that  a  contract  not  com- 
plying with  the  statute  cannot  be  enforced  against  the  Govern- 
ment, such  a  contract  may  be  enforced  against  the  other  party. 
"  Even  when  a  statute  in  so  many  words  declares  a  transaction  void 
for  want  of  certain  forms,  the  party  for  whose  protection  the  re- 
quirement is  made  often  may  waive  it,  void  being  held  to  mean  only 
voidable  at  the  party's  choice." 

( United  States  v.  Neiv  York  and  Porto  Rico  Steamship  Company^ 
decided  by  the  Supreme  Court  of  the  United  States,  Nov.  15,  1915.) 


TAXATION:  Power  of  State  to  imprison  soldier  for  nonpajonent  of  poll 
tax. 

A  noncommissioned  officer  stationed  at  Fort  Stark,  N.  H.,  whose 
parental  domicile  was  New  York,  married  a  New  Hampshire  woman. 
He  maintained  an  apartment  in  the  city  of  Portsmouth,  N.  H.,  for 
his  wife  where  he  spent  three  or  four  nights  a  week  under  military 
authorization.  The  city  of  Portsmouth  assessed  a  poll  tax  against 
the  soldier  upon  the  theory  that  he  had  acquired  a  domicile  in  the 
city,  and  upon  his  refusal  to  pay  it.  he  was  arrested  and  committed 
to  jail.  In  discharging  the  prisoner  from  the  custody  of  the  State 
authorities,  upon  a  writ  of  habeas  corpus,  the  Federal  District  Court 


542       DIGEST   OF    OPINIONS   OF   THE   JUDGE   ADVOCATE   GENERAL, 

for  New  Hampshire  recognized  the  force  of  the  Government's  con- 
tention, supported  in  principle  by  numerous  authorities,  to  the  effect 
that  it  is  an  essential  and  necessary  power  of  the  Federal  Govern- 
ment, in  the  maintenance  of  its  military  establishment,  to  protect  its 
soldiers  from  arrest  and  imprisonment  for  poll  tax  or  from  other 
restraints  and  burdens  affecting  personal  liberty  imposed  by  munici- 
pal government  through  its  taxing  powers,  and  that  the  question 
of  domicile  or  inhabitancy  is  immaterial. 

The  court,  however,  did  not  choose  to  make  its  decision  so  sweep- 
ing, but  considered  it  sufficient  to  hold  that  while  a  soldier  may  be 
so  far  swi  juris  that  he  may  for  certain  purposes  establish  a  domicile 
or  residence  away  from  his  military  station,  provided  it  does  not  in- 
terfere with  his  military  service,  the  circumstances  must  clearly  indi- 
cate such  an  intention  and  that  in  the  instant  case  the  circumstances 
negatived  such  an  intention,  so  that  the  soldier  was  not  an  inhabitant 
of  the  State,  that  is,  was  not  domiciled  in  the  State  within  the  pur- 
view of  the  local  tax  law.     The  court  said  in  part : 

"  It  is  clear  that  there  was  no  definite  purpose  to  make  the  Ports- 
mouth residence,  such  as  it  was,  a  permanent  residence.  The  peti- 
tioner had  a  parental  domicile  in  New  York,  and  to  establish  a 
change  for  any  purpose  the  intention  must  be  clear.  Here  the  mili- 
taiy  situation  was  altogether  inconsistent  with  the  element  of  any 
supposed  permanency  in  the  City  of  Portsmouth  and  away  from  the 
station  of  duty.  Under  such  circumstances,  the  domicile  of  the  hus- 
band would  not  follow  that  of  the  wife  under  an  arbitrary  rule ;  and 
maintaining  the  apartment  in  Portsmouth  that  his  wife  might  live 
there,  and  that  he  might  visit  her  under  leave  when  the  circumstances 
should  permit,  must  be  accepted  as  a  mere  incident  of  his  military 
status,  and  one  entirely  subordinate  to  his  duty  to  the  Government 
when  viewed  in  respect  to  personal  taxation  and  the  restraints  of 
personal  liberty,  involved  in  the  enforcement  of  a  personal  tax,  which 
necessarily  would  interfere  with  the  free  performance  of  a  para- 
mount duty.  The  petitioner  should  be  discharged  from  custody 
under  city  and  State  authority,  and  it  is  so  ordered." 

{John  P.  White,  petitioner,  v.  City  of  Portsmouth  {N.  H.),  de- 
cided Nov.  30,  1915.) 


NOTES  ON  ADMINISTRATION  OF  MILITARY  JUSTICE. 

(Prepared  under  the  direction  of  ttie  Judge  Advocate  General  of  the  Army 
upon  tlie  review  of  records  of  general  courts-martial  trials.) 

CLEMENCY:  Becommendations  to. 

The  review  in  the  Office  of  the  Judge  Advocate  General  of  the 
records  of  trial  by  general  courts-martial,  and  especially  in  the  cases 
of  enlisted  men,  leads  to  the  belief  that  possibly  the  provision  in 
paragraph  12  of  General  Orders  No.  70,  War  Department,  1914,  in 
reference  to  recommendations  to  clemency,  is  sometimes  lost  sight  of. 
Members  of  courts-martial  should  never  hesitate  to  submit  such  rec- 
ommendations in  the  manner  therein  indicated  whenever  they  believe 
the  facts  and  circumstances  in  any  case  justify  clemency. 


DIGEST   OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       543 

PLEA  OF  GUILTY:   Duty  of  president  of  court-martial  respecting. 

The  records  of  the  recent  trials  by  general  courts-martial  disclose 
that  in  many  cases  the  requirements  of  paragraph  8,  General  Orders 
No.  70,  War  Department,  1914,  were  not  observed.  In  154  cases  con- 
secutively reviewed  23  of  the  records  showed  the  presidents  of  the 
courts  to  have  failed  in  this  respect.  That  paragraph  requires, 
among  other  things,  that  in  each  case  where  the  accused  enters  a 
plea  of  guilty  the  president  of  the  court  shall  explain  to  him,  first, 
the  meaning  of  such  plea,  and  second,  the  extent  of  the  punishment 
to  which  the  plea  will  subject  him.  Every  commander  exercising 
general  court-martial  jurisdiction  is  expected  to  exact  a  full  compli- 
ance with  these  requirements;  and  in  every  case  where  the  record 
shows  a  failure  by  the  president  of  the  court  in  this  regard  the  re- 
viewing authority  should,  without  delaying  action  on  the  sentence 
therefor,  require  a  written  explanation  by  such  president  to  accom- 
pany the  record  when  it  is  forwarded  to  the  Judge  Advocate  General. 


BULLETIN  8. 

BiTLLETiN  1  WAR  DEPARTMENT, 

No.  8.     J  Washington,  March  8,  1916. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General  of 
the  Army,  for  the  months  of  January  and  February,  1916,  and  of 
certain  decisions  of  the  Comptroller  of  the  Treasury  and  of  courts, 
is  published  for  the  information  of  the  service  in  general. 
[2375247,  A.  G.  O.] 

H.  L.  SCOTT, 
Secretary  of  War,  ad  interim. 
Official  : 

H.  P.  McCAIN, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ARMY  RESERVE:   Enlistment  of  members  of,  in  Organized  Militia  and 
employment  as  stablemen. 

The  question  was  presented  whether  enlisted  men  in  the  Army 
Reserve  are  eligible  for  enlistment  in  the  Organized  Militia  and  em- 
])loyment  as  stablemen  for  militia  batteries.  The  law  requires  that 
such  employees  shall  be  enlisted  men  of  the  Organized  Militia. 
(38  Stat.,  1071.)  . 

Held.,  that  members  of  the  Army  Reserve  are  not  eligible  for  such 
employment,  since  the  conditions  under  which  the  Army  Reserve  and 
the  Organized  Militia  will  be  called  into  active  service  will  usually 
co-exist,  so  that  the  necessity  of  the  soldier  to  rejoin  his  regiment  for 
action  would  result  in  leaving  a  vacancy  in  the  militia  where  com- 
petent and  experienced  men  are  required. 

(58-051,  J.  A.  G.,  Jan.  15,  1916.) 


ARMY  RESERVE:  Medical  treatment  of  members. 

Paragraph  1453,  Army  Regulations,  provides  that  recently  dis- 
charged soldiers,  needing  hospital  treatment,  who  arrive  in  New  York 
City,  San  Francisco,  or  other  port  on  Government  transports,  may  be 
sent  to  one  of  the  military  hospitals  in  the  vicinity  and  rations  in  kind 
drawn  for  them  while  undergoing  treatment. 

Held,  that  the  same  rights  under  similar  conditions  may  and  should 
be  accorded  to  enlisted  men  recently  furloughed  to  the  Armv  Reserve. 

(6-227.6,  J.  A.  G.,  Feb.  26.  1916.) 


CIVILIAN    EMPLOYEES:    Ration    allowance    while    under    treatment    in 
hospital. 

A  civilian  employed  as  teamster  in  the  Quartermaster  Corps  at 
Honolulu,  H.  T.,  at  $40  a  month  and  rations,  having  been  injured 
while  m  the  performance  of  his  duty,  was  duly  admitted  to  the  post 

544  j:  .  r 


DIGEST    OF    OPINIONS   OF    THE   JUDGE   ADVOCATE    GENERAL.       545 

hospital  for  treatment.  No  provision  is  made  by  law  for  the  payment 
of  commutation  of  rations  to  civilian  employees,  and  it  is  expressly 
prohibited  by  A.  K.  1229. 

Ileld^  that  as  the  employee  was  entitled  to  rations  mider  his  contract 
of  employment  in  accordance  Avith  A.  R.  1203,  the  hospital  should 
draw  his  rations  in  kind  and  remit  the  charge  of  40  cents  a  day  pre- 
scribed by  A.  E.  1460. 

(5-242;  J.  A.  G.,  Feb.  26,  1916.) 


CLAIMS:   As  to  compromise  of  Government  claims, 

A  garbage  crematory  was  protected  by  the  contractor  for  one 
year  under  an  indemnity  bond  against  defects  in  material  and  work- 
manship. Within  the  year  the  Government  made  repairs  at  an  ex- 
pense of  $100.  There  was  a  disagreement  whether  the  whole  amount 
was  chargeable  against  the  contractor  and  it  was  proposed  to  com- 
promise the  claim  by  the  payment  to  the  United  States  of  $45,  which 
proposition  was  reported  by  the  local  constructing  quartermaster 
as  a  "  fair  offer." 

Ileld^  that  if  the  contractor's  liability  was  $100,  the  War  Depart- 
ment would  have  no  authority  to  compromise  by  accepting  a  smaller 
sum,  since  claims  in  favor  of  the  Government,  other  than  those  aris- 
ing under  the  postal  laws,  can  only  be  compromised  by  the  Secretary 
of  the  Treasury  under  authority  of  Section  3469,  Revised  Statutes. 
(21  Opins.  Atty.  Gen.,  494;  23  Id.,  631). 

Held  further,  that  if  upon  further  consideration  it  be  ascertained 
that  the  cost  of  the  repairs  properly  chargeable  to  the  contractor 
was  $45,  and  not  $100,  it  should  be  so  reported  and  the  case  settled 
on  the  true  basis. 

(76-742,  J.  A.  G.,  Feb.  10,  1916.) 


COURTS-MAIITIAL :    Effect   of  sentence   of   dishonorable   discharge   upon 
prior  unserved  enlistment. 

A  deserter  from  the  Army  enlisted  in  the  Marine  Corps.  His 
organization  therein  was  detached  for  service  with  the  Army,  and 
during  such  service  he  was  tried  by  Army  court-martial  and  "  dis- 
honorably discharged  the  service  of  the  United  States." 

Held,  that  the  sentence  to  be  "  dishonorably  discharged  the  service 
of  the  United  States"  was  a  complete  expulsion  of  the  enlisted  man 
from  the  service  of  the  United  States  and  operated  to  terminate  his 
unserved  enlistment  with  the  Army,  although  the  court-martial  knew 
nothing  of  his  desertion. 

(28-130,  J.  A.  G.,  Jan.  13,  1916.) 


EIGHT-HOUR  LAW :  Not  applicable  to  chaufEeurs. 

Held,  that  a  chauffeur  is  not  within  the  purview  of  the  eight-hour 
law  which  applies  to  laborers  and  mechanics. 
(32-223,  J.  A.  G.,  Jan.  22,  1916.) 

93668°— 17 35 


546        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

ENLISTED  MEN:  Commutation  of  rations. 

Request  was  made  for  authority  to  pay  commutation  of  rations 
to  three  certain  enlisted  men  at  a  garrisoned  post,  on  the  ground 
that  the  hours  during  Avhich  they  were  required  to  work  made  it  im- 
jjracticable  for  them  to  be  subsisted  with  any  organization. 

II eld ^  that  the  provisions  of  the  Army  Appropriation  Act  for  the 
l)ayment  of  commutation  of  rations  to  enlisted  men  "  when  stationed 
at  places  where  rations  in  kind  can  not  be  economically  issued  "  is 
tantamount  to  a  prohibition  against  the  payment  of  such  commuta- 
tion to  enlisted  men  serving  at  a  garrisoned  post,  and  that  the  pro- 
posed payment  would  be  contrary  to  the  statute  and  forbidden  by 
[)arairraph  1229,  Armv  Regulations. 

(G-228,  J.  A.  G.,  Jan.  8,  1916.) 


ENLISTED  MEN:  Eeenlistment  after  four  years'  service. 

The  question  was  presented  whether  an  enlisted  man  after  having 
served  four  of.  the  seven  years  of  his  enlistment  and  is  discharged 
for  the  purpose  of  reenlistment  is  required  to  reenlist  immediately, 
or  Avhether  he  "  has  the  privilege  of  remaining  out  the  authorized 
three  months  before  reenlistment." 

Held,  that  the  provision  for  the  discharge  of  an  enlisted  man  at 
the  end  of  four  years  imder  the  Army  Reserve  Act  (37  Stat.,  590) 
does  not  contemplate  that  ho  shall  thereb}^  become  a  civilian,  but  is 
for  the  purpose  of  substituting  a  new  enlistment  contract  for  the 
old,  without  interruption  of  the  service  status  of  the  soldier,  and 
that,  therefore,  a  discharge  at  the  end  of  four  years'  service  under 
the  Armv  Reserve  Act  can  be  given  onlv  upon  reenlistment. 

(6-300,  J.  A.  G.,  Jan.  5,  1916.) 


FOBEIGN  SERVICE:  Construction  of  statute  relating  to  tours  of  duty. 

The  Act  of  March  4,  1915  (38  Stat.,  10T8),  provides  that  no  officer 
or  enlisted  man  of  the  xVrmy  shall,  e.vcept  upon  his  own  request^  be 
required  to  serve  in  a  single  tour  of  duty  for  more  than  two  years 
in  the  Philippine  Islands,  nor  more  than  three  years  in  the  Panama 
Canal  Zone,  except  in  case  of  insurrection  or  actual  or  threatened 
hostilities. 

Held,  that  if  a  tour  of  duty  is  extended  at  the  request  of  an  officer 
or  enlisted  man,  he  may  be  required  to  ser^e  the  full  period  extended. 

(6-160,  J.  A.  G.,  Jan.  28,  1916.) 


MEDICAL  ATTENDANCE :  Officer  on  leave  of  absence. 

An  officer  while  on  leave  of  absence  suddenly  became  ill  at  an  army 
pos-t  and  requested  that  he  be  taken  up  on  "  sick  report.'"  The  physi- 
cian employed  by  the  Government  to  furnish  medical  attendance  for 
the  post  had  left  the  post  for  the  day  and  could  not  be  located.  An- 
other physician  was  called  in  and  upon  his  recommendation  the  officer 
was  sent  to  the  city  hosj^ital,  where  he  remained  under  the  care  of  the 
latter  physician  until  he  was  able  to  leave  the  hospital,  after  nine 


DIGEST    OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.        547 

days,  when  he  returned  to  the  post  and  recei\ed  treatment  by  the  post 
physician.  Accounts  were  submitted  for  the  ])aynient  by  the  Govern- 
ment of  the  hospital  and  physician's  bills.  By  a  provision  contained 
in  the  appropriation  item  for  the  medical  care  and  treatment  of 
officers  and  enlisted  men  by  civilian  physicians  or  in  private  hospitals 
it  is  declared  that  "this  shall  not  a})i)ly  to  officers  and  enlisted  men 
who  are  treated  in  private  hospitals  or  by  civilian  physicians  tchile 
on  furlough.'''' 

Held,  that  the  accounts  were  not  pa.yable  from  public  funds,  not 
only  because  the  officer  was  in  a  leave  status,  but  also  because  it  was 
not  shown  that  the  necessary  treatment  could  not  have  been  had 
under  the  facilities  of  the  post,  except,  possibly,  the  first  or  emer- 
gencv  treatment. 

(C)-22T.G,  J.  A.  G.,  Feb.  19,  1916.) 


PAY  AND  ALLOWANCES:   Continuous  service  pay  of  enlisted  men. 

The  question  was  presented  Avhether  a  soldier  serving  an  enlist- 
ment entered  into  on  or  after  November  1,  1912  (the  date  the  7-year 
enlistment  law  took  effect),  must  serve  over  2  j^ears  or  over  3-|  years 
prior  to  a  discharge  for  the  convenience  of  the  Government  in  order 
to  entitle  him,  upon  reenlistment,  to  be  placed  in  a  higher  enlistment 
period  with  reference  to  continuous  service  pay.  The  Act  of  May 
11,  1908  (35  Stat.,  109),  relating  to  continuous  service  pay,  provides 
that  "  any  soldier  who  receives  an  honorable  discharge  for  the  con- 
venience of  the  Government  after  having  served  more  than  half  of 
his  enlistment  shall  be  considered  as  having  served  an  enlistment 
period  within  the  meaning  of  this  act,"  and  the  Act  of  August  24, 
1912  (37  Stat.,  590),  establishing  the  Army  Eeserve  contains  the 
provision  that  "  for  all  enlistments  hereafter  accomplished  under  the 
provisions  of  this  act,  four  years  shall  be  counted  as  an  enlistment 
period  in  computing  continuous-service  pay." 

Held.,  that  the  above  mentioned  provisions  of  the  acts  of  1908 
and  1912  are  in  pari  materia.,  the  purpose  being  to  regulate  continu- 
ous service  pay,  and  that  as  the  act  of  1912  declares  that  four  years 
shall  constitute  an  enlistment  period  in  computing  continuous  service 
pa3%  the  act  of  1908  operates  with  reference  to  the  said  four-year 
period,  and  hence  a  soldier  enlisted  under  the  act  of  1912  who  receives 
an  honorable  discharge  for  the  convenience  of  the  Government  after 
having  served  more  than  two  years  is  entitled  to  be  credited  with  an 
enlistment  period  for  such  service. 

(28-231,  J.  A.  G.,  Feb.  26,  1916.) 


PENALTY  ENVELOPES:   Use  of,  in  connection  with  the   expenditure   of 
company  fund. 

A  company  commander  used  penalty  envelopes  in  conducting  cor- 
respondence for  the  purchase  from  the  company  fund  of  beer  for 
n  special  dinner  of  the  company  mess.  The  post-office  authorities 
(juestioned  v/hether  such  use  of  the  penalty  envelope  was  authorized 
as  lelating  "  exclusively  to  the  business  of  the  Government  of  the 
TTnited  States."    (19  Stat.,  319.)    A  company  commander  is  required 


548       DIGEST   OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

to  disburse  the  company  fund  solely  for  the  benefit  of  the  company. 
(xV.  R.,  327.) 

Ileld^  that  Congress,  having  prohibited  the  sale  of  or  dealing  in 
intoxicating  liquors  upon  any  premises  used  for  military  purposes, 
the  presumption  is  that  the  statute  proceeded  upon  the  theory  that 
the  use  of  intoxicating  liquors  as  a  beverage  is  detrimental  and  not 
beneficial  to  persons  in  the  military  service;  that  upon  this  theory 
an  expenditure  of  the  company  fund  for  such  purpose  would  not  be 
"solely  for  the  benefit  of  the  company"  as  directed  by  A.  R.  327, 
and  therefore  unauthorized,  and  the  use  of  the  penalty  envelope  con- 
sequentl}^  was  not  for  the  business  of  the  Government  and  was 
unauthorized. 

Held  further^  that  as  to  purchases  from  the  company  fund  of 
articles  properly  to  be  regarded  as  "solely  for  the  benefit  of  the 
company,"  the  use  of  penalty  envelopes  therefor  would  be  authorized 
as  relating  to  the  business  of  the  Government,  the  company  fund 
being  a  Government  agencv. 

(22-020,  J.  A.  G.,  Jan.  28,  1916.) 


PUBLIC    RECORDS:    Procedure    for   the    disposition    of   useless   files    and 
papers. 

The  Act  of  February  16,  1889  (25  Stat.,  672),  provides  that— 

"  Whenever  there  shall  be  in  any  one  of  the  Executive  Depart- 
ments of  the  Government  an  accumulation  of  files  of  papers,  which 
are  not  needed  or  useful  in  the  transaction  of  the  current  business  of 
such  Department  and  have  no  permanent  value  or  historical  interest, 
it  shall  be  the  duty  of  the  head  of  such  Department  to  submit  to 
Congress  a  report  of  that  fact,  accompanied  by  a  concise  statement 
of  the  condition  and  character  of  such  papers." 

The  act  further  provides  that  upon  being  duly  authorized,  as  set 
forth  therein,  it  shall  be  the  duty  of  the  head  of  the  department  to 
sell  or  otherwise  dispose  of  the  papers  upon  the  best  obtainable 
terms,  depositing  the  proceeds  in  the  Treasury.  The  said  act  of  1889 
was  amended  so  as  to  include  in  its  provisions  "  any  accumulation  of 
files  of  papers  of  a  like  character  therein  described  now  or  hereafter 
in  the  various  public  buildings  under  the  control  of  the  several 
Executive  Departments  of  the  Government."     (28  Stat.,  933.) 

Held,  that  the  Act  of  1889  as  amended  prescribes  the  procedure 
for  the  disposition  of  all  useless  files  of  papers  under  the  jurisdiction 
of  the  several  departments,  whether  at  tlie  seat  of  Government  or 
elsewhere,  and  that  it  operates  to  j^rohibit  the  destruction  of  records 
save  as  therein  prescribed. 

(66-322,  J.  a:  G.,  Jan.  7,  1916.) 


REIMBURSEMENTS:    Expenditure   of  private   funds   for   use   of   Govern- 
ment. 

A  chaplain  of  an  organization  which  was  about  to  go  into  camp 
requested  authority  to  incur  expenses  for  motion  pictures  and  other 
means  of  diversion  at  the  recreation  tent.  Before  receiving  a  re- 
sponse from  the  department  commander,  which  disapproved  the  pro- 


DIGEST   OF    OPIinONS   OF   THE   JUDGE   ADVOCATE   GEISTERAL.       549 

posed  expenditure,  the  chapLiin  went  ahead  and  put  a  motion  picture 
machine  in  operation  and  j^aid  the  cost  from  his  own  private  funds. 
Upon  liis  application  to  the  War  Department  to  be  reimbursed,  it 
was  held  that  reimbursement  could  not  be  authorized  in  view  of  the 
ruling  of  the  Comptroller  of  the  Treasury  that  "  the  expenditure  of 
private  funds  for  supplies  for  the  use  of  the  Government  is  not 
authorized  except  under  stress  of  urgent  and  unforeseen  public 
necessity."  (16  Cornp.,  519.) 
(40-100,  J.  A.  G.,  Jan.  10,  1916.) 


STATE  COUKTS:  Arrest  of  enlisted  man  in  civil  proceeding  for  debt. 

Section  1237,  Revised  Statutes,  provides: 

"No  enlisted  man  shall,  during  his  term  of  service,  be  arrested  on 
mesne  process,  or  taken  or  charged  in  execution  for  any  debt,  unless 
it  was  contracted  before  his  enlistment,  and  amounted  to  twenty 
dollars  when  first  contracted." 

A  writ  for  the  arrest  of  an  enlisted  man  was  issued  by  State  au- 
thorities in  a  civil  proceeding  fur  debt  under  the  laws  of  the  State 
relating  to  absconding  debtors,  the  enlisted  man  sought  being  about 
to  leave  the  jurisdiction  under  military  orders. 

Ileld^  that  the  writ  of  arrest,  not  being  in  a  criminal  action  but 
being  an  auxiliary  process  in  a  civil  proceeding,  and  therefore  mense 
process,  and  the  debt  having  been  contracted  after  the  soldier's 
enlistment,  the  arrest  would  be  illegal  in  view  of  section  1237, 
E.e^•ised  Statutes,  siipro.. 

Held,  further^  that  in  case  of  a  criminal  prosecution  and  the  issu- 
ance of  a  warrant  of  arrest  of  an  enlisted  man  by  State  authorities, 
it  would  be  the  duty  of  the  commanding  officer,  under  the  59th 
Article  of  War,  to  interpose  no  obstacle  to  the  arrest,  but  on  the 
other-hand  to  assist  the  civil  authorities  in  executing  the  writ. 

(14-233,  J.  A.  G.,  Feb.  25,  1916.) 


DECISIONS  OF  THE  COMPTEOLLER  OF  THE  TREASTJEY. 
(Digests  prepared  in  tlie  office  of  the  Judge  Advocate  General.) 

CLAIMS:  E-eimbursenient  for  expenses. 

Two  vouchers  were  submitted  for  decision  as  to  their  legality. 
The  first  was  for  $15.01  in  favor  of  the  widow  of  a  deceased  officer 
"  for  hauling  his  personal  effects  from  railroad  station  at  Plainfield, 
N.  J.,  to  storage,  per  recei[)ted  bill."  The  second  voucher  was  for 
$3.25  for  "  reimbursement  of  expense  incurred  by  payee,  a  clerk  in  the 
Medical  Cor])s,  U.  S.  Army,  for  cartage  of  his  household  goods, 
weighing  2343  lbs.,  from  freight  station  to  residence  at  Lyndhurst, 
N.  J.,  upon  change  of  station  pursuant  to  orders." 

Ileld^  that  there  is  no  law,  or  regulation  having  the  force  of  law, 
which  makes  provision  for  the  reimbursement  of  a  person,  as  in  the 
two  cases  submitted,  who  haids  his  baggage  upon  his  own  responsi- 
bility at  his  own  expense;  that  if  the  hauling  in  question  in  both 
cases  be  a  proper  charge  against  the  United  States,  it  was  an  expense 


550         DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENERAL. 

-which  should  have  been  incurred  by  the  Quartermaster  Corps  of  the 
Army  and  not  by  the  persons  whose  property  it  -svas;  and  that  the 
hauling  being  vohmtary  on  the  part  of  the  persons  concerned,  reim- 
bursement of  the  cost  is  not  authorized. 
(Comp.  W.  W.  Warwick,  Feb.  26,  1916.) 


CONTRACTS:  Delivery  of  supplies  after  expiration  of  contract  period. 

By  contract  dated  April  26, 1915,  for  furnishing  hay  for  the  troops 
on  the  Mexican  border,  a  firm  agreed  to  furnish  and  deliver,  f.  o.  b. 
cars  at  designated  stations,  during  the  period  July  1  to  September  30, 
1915,  in  car  loads,  alfalfa  hay  in  accordance  with  specifications,  at 
rates  of  78.88  and  91i  cents  per  cwt.,  during  the  respective  months. 
By  similar  contract  dated  August  5,  1915,  the  same  firm  agreed  to 
fiirnish  the  same  quality  of  hay  during  the  month  of  October,  1915, 
at  73^  cents  per  cwt.  About  the  15th  of  September,  by  reason  of  an 
unexpected  increase  in  the  troops  in  the  territory  covered  by  the  con- 
tracts, calls  were  issued  upon  the  contractor  for  the  immediate  de- 
livery of  about  233,000  pounds  of  hay,  under  the  April  contract. 
Deliveries  were  made  within  a  reasonable  time,  in  the  opinion  of  the 
depot  quartermaster,  but  not  until  some  time  in  October,  after  the 
expiration  of  the  contract  and  Avithin  the  period  covered  by  the  later 
contract. 

Ileld^  that  the  hay  having  been  ordered  under  the  contract  of  April 
26,  1915,  for  delivery  under  said  contract,  to  meet  needs  arising  clur- 
ing  the  period  covered  by  said  contract,  payment  could  only  be  made 
in  accordance  with  the  terms  thereof.  Field  further,  that  if  the  con- 
tractor unreasonably  delayed  in  filling  orders  given  under  said  con- 
tract, the  proper  remedy  was  to  decline  to  accept  deliveries  when 
tendered  as  under  such  contract,  but  "  having  accepted  said  deliveries, 
the  Government  is  estopped  from  paying  contractor  otherwise  than 
at  the  rate  fixed  by  said  contract,  subject,  of  course,  to  a  deduction 
for  any  and  all  actual  damages  occasioned  the  GoAernment  by  any 
unreasonable  delay  on  the  contractor's  part  in  making  such  deliv- 
eries." 

(Comp.  W.  W.  Warwick,  Jan.  3,  1916.) 


ENLISTED  MEN:  Employment  as  laborers. 

An  enlisted  man  of  the  Coast  Artillery  Corps  while  detailed  for 
duty  with  the  Organized  Militia  of  a  State  was  emploA'ed,  by  per- 
mission of  his  commanding  officer,  as  laborer  in  installing  dummy 
armament  in  the  militia  armor}-  at  an  agreed  compensation  of  $2.25 
per  day. 

Ileld^  that  the  employment  under  the  conditions  stated  was  incom- 
patible with  the  status  and  obligation  of  an  enlisted  man:  that  if 
the  work  was  such  as  could  be  required  of  him  under  his  general  obli- 
gations as  a  soldier  he  was  not  entitled  to  additional  pay  therefor, 
and  that  if  it  was  proper  to  detail  him  to  perform  the  duty  so  as  to 
entitle  him  to  extra  duty  pay  therefor,  the  per  diem  prescribed  by 
law  for  extra  dutv  was  the  measure  of  his  allowance. 

(Comp.  W.  W.  Warwick,  Dec.  10,  1915.) 


DIGEST    OF    OPINIONS   OF    THE   JUDGE   ADVOCATE   GENERAL.       551 

HEAT  AND  LIGHT:   Allowances  under  varying  conditions  to   officer   on 
commutation  status. 

In  the  case  of  an  officer  whose  maximum  alloAvaiice  of  quarters  was 
se\en  rooms,  decision  was  requested  as  to  the  proper  basis  of  pay- 
ment of  commutation  of  heat  and  light  under  the  following  condi- 
tion: At  Washington,  D.  C,  on  duty  October  1-10,  1915,  he  occupied 
private  (]uarters  consisting  of  11  rooms,  and  Octol)er  11-15,  1915,  he 
occupied  private  (juarters  consisting  of  7  rooms.  On  October  15, 
1915,  he  took  station  at  the  Medical  Supply  Depot,  New  York  City, 
and  occupied  two  private  rooms  until  November  30,  1915,  his  family 
having  continued  to  occupy  private  (pnu'ters  consisting  of  seven 
rooms  in  Washington.  On  November  30,  1915,  he  left  his  station  on 
leave  of  absence  for  two  months,  and  during  the  month  of  December, 
while  on  leave  of  absence,  he  occupied  quarters  consisting  of  seven 
rooms  in  AVashington,  D.  C. 

Ilelcl^  that  the  officer's  maximum  allowance  of  quarters  being  seven 
rooms  and  he  having  occupied  that  many  or  more  October  1-14,  he 
was  entitled  to  commutation  of  heat  and  light  for  seven  rooms  for 
the  said  period ;  that  from  October  15  to  November  30,  having  occu- 
l^ied  only  two  rooms  as  quarters  in  New  York,  he  was  entitled  to  com- 
mutation of  heat  and  light  for  only  two  rooms  for  said  period;  that 
he  was  entitled  to  no  commutation  for  heat  and  light  for  the  month 
of  December.  1915,  for  the  reason  that  no  quarters  were  occupied  by 
himself  or  his  family  at  his  official  station  during  said  period,  and 
that  there  is  no  authority  of  law  for  furnishing  heat  and  light  for 
quarters  occupied  by  an  officer's  family  at  any  place  other  than  his 
official  station.  ^ 

(Comp.  W.  W.  Warwick,  Jan.  31,  1916.) 


PUBLIC  PROPERTY:  When  shipping-  officer  is  responsible  for  loss. 

A  surveying  officer  designated  to  ascertain  responsibility  for  the 
loss  of  a  box  of  hats  which  was  loaded  with  other  property  in  a  l)ox  car 
for  shipment  from  Camp  Stotsenburg  to  Manila,  P.  I.,  found  and 
reported  that  the  hats  were  stolen  sometime  after  they  were  loaded 
into  the  car  and  before  the  car  was  sealed,  and  it  was  recommended 
that  the  railroad  company  be  charged  with  the  value  of  the  hats. 

Held,  that  as  the  car  was  loaded  by  the  GoAernment  and  had  not 
been  accepted  and  sealed  by  the  railroad  company,  the  shipping 
officer  was  responsible  for  the  loss;  that  as  the  car  was  shipped  sealed, 
it  was  his  duty  to  protect  the  car  until  accepted  and  sealed  by  the 
railroad  company. 

(Comp.  AV.  W.  Warwick,  Feb.  2,  1916.) 


PURCHASE  OF  SUPPLIES:  Requirements  as  to  advertising  in  purchasing 
motor  trucks. 

A  certain  quartermaster  having  been  authorized  to  purchase  two 
light  delivery  trucks  at  a  cost  not  to  exceed  $1'290  each,  did  not 
advertise  for  proposals,  but  "after  obtaining  ])rices,  specifications, 
and  personally  examining  into  the  merits,  hill-climbing  ability,  and 
cost  of  maintenance  and  operation  he  decided  that  the ^^  truck 


552   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

was  the  most  suitable  and  economical  for  the  purpose  for  which  re- 
(|uired,  and  the  purchase  was  made  accordingly." 

Held,  that  the  trucks  having  been  purchased  without  affording  an 
opportunity  to  other  dealers  to  bid  in  a  competitive  way  on  specifica- 
tions enil)odying  requirements  similar  to  those  which  were  to  be  met 
by  the  make  of  truck  selected,  such  purchase  was  contrary  to  the 
provisions  of  Section  3709,  Revised  Statutes.  The  auditor's  disal- 
lowance was  affirmed.     (See  Bui.  No.  14,  War  Department,  1915,  p.  8.) 

(Comp.  W.  W.  Warwick,  Jan.  13,  1916.) 


DECISIONS  OF  THE  COURTS. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

CONTRACTS:   Unforeseen  difficulties  in  performance  of. 

A  certain  steel  company  was  awarded  a  contract  for  furnishing  the 
Government  with  18-incli  armor  plate  in  conformity  with  specifica- 
tions and  drawings  attached  and  made  a  part  of  the  contract.  The 
Government  engaged  to  receive  the  plates  when  manufactured,  tested 
and  approved  as  provided.  The  contract  contained  a  clause  provid- 
ing for  liquidated  damages  of  1/30  of  1%  of  the  contract  price  of 
all  the  armor  plate  remaining  undelivered  for  each  and  every  day  of 
delay  in  the  completion  of  the  contract  not  due  to  "  unavoidable 
causes,  such  as  fires,  storms,  labor  strikes,  actions  of  the  United 
States,  and  so  forth."  There  was  considerable  delay  in  completing 
deliveries  due  to  alleged  difficulties  encountered  in  the  manufacture 
of  the  plates  by  reason  of  disappointment  in  the  application  to  18- 
inch  plate  of  a  treatment  or  face-hardening  process  deduced  from 
the  formula  which,  it  was  contended,  "  the  contractor  and  every 
other  manufacturer  of  armor  plate  in  this  and  every  foreign  country 
had  followed  in  the  manufacture  of  armor  plate,  and  which  was 
recognized  by  authorities  on  the  subject  as  the  one  which  would  give 
the  best  results."  It  was  asserted  that  theretofore  no  face-hardened 
armor  18  inches  in  thickness  had  been  manufactured  in  this  or  any 
other  country  and  no  information  respecting  the  process  to  be  em- 
ployed in  its  manufacture  was  obtainable.  The  contractor  contended 
that  the  causes  of  the  delay  were  unavoidable  and  unforeseen  by  both 
parties  when  the  contract  was  made  and  that  the  delays  were  there- 
fore excusable  and  of  the  character  described  in  the  contract,  that 
is,  "unavoidable  causes,  such  as  fires,  storms,  labor  strikes,  actions 
of  the  United  States  and  so  forth."  The  Ordnance  Department, 
however,  made  a  deduction  of  $7,564.08  as  resulting  liquidated  dam- 
ages under  the  contract.  The  contractor  brought  suit  in  the  Court  of 
Claims  to  recover  the  amount  so  deducted,  and  from  an  adverse 
decision  of  that  court  appealed  to  the  Supreme  Court.  In  sustaining 
the  decision  of  the  Court  of  Claims  the  Supreme  Court,  among  other 
things,  said : 

"Ignorance  of  the  scientific  process  necessary  for  face-hardening 
18-inch  armor  plate  is  asserted  to  be  an  unavoidable  cause  of  the  char- 
acter of  the  enumeration  of  article  8  of  the  contract,  that  is,  '  such 
as  fires,  storm.s,  labor  strikes,  action  of  the  United  States,  etc'  The 
contention  is  that  it  is  the  same  'genus  or  kind,'  because  (1)  it  was 


DIGEST    OF    OPINIONS   OF    THE    JUDGE   ADVOCATE    GENERAL.        553 

not  foreseeable  when  the  contract  was  made;  (2)  was  not  the  result 
of  any  act  of  neglect  on  the  part  of  the  claimant ;  (-3)  was  not  a  cause 
the  company  could  prevent.  *  *  *  The  contention  that  the  al- 
leged causes  can  be  assigned  to  such  category  creates  some  surprise. 
It  would  seem  that  the  very  essence  of  the  promise  of  a  contract  to 
deliver  articles  is  ability  to  procure  or  make  them.  But  claimant 
says  its  ignorance  was  not  peculiar,  that  it  was  shared  by  the  world 
and  no  one  knew  that  the  process  ade(juate  to  produce  1-i-incIi  armor 
plate  would  not  produce  18-inch  armor  plate.  Yet  claimant  shows 
that  its  own  experiments  demonstrated  the  inadequacy  of  the  accepted 
formula.  A  successful  process  was  therefore  foreseeable  and  dis- 
coverable. And  it  would  seem  to  have  been  an  obvious  prudence  to 
have  preceded  manufacture,  if  not  engagement,  by  experiment  rather 
than  risk  failure  and  delay  and  their  consequent  penalties  by  extend- 
ing an  old  fornuda  to  a  new  condition. 

"  But  even  if  this  cannot  be  asserted,  the  case  falls  within  The 
Ilarriman  (9  Wall.,  IGl,  172),  where  it  is  said  that  'the  principle 
deducible  from  the  authorities  is  that  if  what  is  agreed  to  be  done  is 
possible  and  lawful,  it  must  be  done.  Difficulty  or  improbability  of 
accomplishing  the  undertaking  will  not  avail  defendant.  It  must 
be  shown  that  the  thing  cannot  by  any  means  be  effected.  Nothing 
short  of  this  will  excuse  performance.' 

"And  it  was  held  in  Suiv  Printing  cG  Publishing  Ass^n  v.  Moore 
(183  U.  S.,  642)  that '  it  was  a  well-settled  rule  of  law  that  if  a  party 
by  his  contract  charges  himself  with  an  obligation  possible  to  be 
performed,  he  must  make  it  good,  unless  its  performance  is  rendered 
impossible  by  the  act  of  God,  the  law  or  the  other  party.  Unfore- 
seen difficulties,  however  great,  will  not  excuse  him.'  Cases  were 
cited,  and  it  was  said  the  principle  was  sustained  by  many  adjudica- 
tions." 

{Carnegie  Steel  Co.  v.  United  /States,  decided  by  the  Supreme 
Court  of  the  United  States,  Feb.  21,  1916.) 


KOE.SES:  Claims  for  loss  of,  in  military  service. 

In  a  recent  suit  brought  by  an  officer  of  the  Army  in  the  Court  of 
Claims,  for  reimbursement  for  the  loss  of  a  horse  in  the  military 
service,  the  court  overruled  its  decision  in  the  Ilardie  case  (39  C. 
Cls.,  250),  and  held  that  there  was  no  authority  for  allowance  of 
the  claim. 

In  the  Ilardie  case  reimbursement  was  claimed  and  allowed  under 
the  provisions  of  section  3182,  Kevised  Statutes,  as  amended  by  the 
Act  of  June  22,  1871  (18  Stat.,  193),  which  authorized  the  reimburse- 
ment of  officers  for  a  limited  time  for  horses  lost  in  the  military 
service  not  due  to  the  faidt  or  negligence  of  such  officer.  The  time 
limit  for  filing  such  claims  was  extended  by  the  Act  of  January  9, 
1883  (22  Stat.,  101),  which  provided: 

"That  the  time  for  filing  claims  for  horses  and  equipments  lost 
by  officers  and  enlisted  men  in  the  military  service  of  the  United 
States,  which  expired  by  limitation  on  the  thirty-first  day  of  De- 
cember, eighteen  hundred  and  seventy-five,  be,  and  the  same  is 
hereby,  extended  to  one  year  from  and  after  the  passage  of  this  act; 
and  that  all  such  claims  filed  in  the  proper  clepartm.ent  before  the 


554       DIGEST    OF    OPINIONS    OF    THE    JUDGE   ADVOCATE    GENERAL. 

passa£?e  of  this  act  shall  be  deemed  to  have  been  filed  in  due  time,' 
and  shall  be  considered  and  decided  without  refiling. 

"Sec.  2.  That  all  claims  arising  under  the  act  approved  March 
third,  eighteen  hundred  and  forty-nine,  entitled  'An  act  to  provide 
for  the  payment  of  horses  and  other  property  lost  or  destroyed  in 
the  military  service  of  the  United  States,'  and  all  acts  amendatory 
thereof,  which  shall  not  be  filed  in  the  proper  department  within  one 
year  from  and  after  the  passage  of  this  act  shall  be  forever  barred, 
and  shall  not  be  received,  considered,  or  audited  by  any  department 
of  the  Government." 

In  the  liar  die  case  the  court  gave  particular  consideration  to  the 
phraseology  of  the  Act  of  1883,  and  held  that  the  words  "  received, 
considered,"^  or  audited,"  used  in  connection  with  the  phrase  "  any 
department  of  the  Government,"  indicated  that  the  statute  was 
intended  "to  limit  the  jurisdiction  of  the  executive  department  of 
the  Government,  and  not  to  limit  the  jurisdiction  of  this  court  which 
has  been  exercised  under  the  Acts  of  1849  and  1874,"  and  that  the 
claim  having  originated  within  six  years  v.as  within  the  general 
jurisdiction  of  the  court,  which  was  held  not  to  be  affected  bv  the 
Act  of  1883. 

In  overruling  the  Ilardie  case  Judge  Downey,  speaking  for  the 
court,  among  other  things  said: 

"The  decision  in  the  Ilardle  case  seems  to  us  faulty,  and  after 
careful  reconsideration  of  the  whole  matter  we  conclude  that  it  has 
been  a  mistake  to  follow  it,  and  that  it  cannot  meet  with  our  further 
approval.  It  seemed  proper  enough,  in  pursuance  of  the  usual 
policy  of  following  established  precedents,  to  adopt  the  reasoning 
of  that  case  to  the  general  effect  that  the  act  of  1883  was  not  intended 
to  deprive  this  court  of  its  jurisdiction,  but  it  now  seems  apparent 
on  furtlier  investigation  that  the  court  in  that  case  was  in  error  in 
that,  among  other  things,  it  was  taking  for  granted  or  assuming  the 
existence  of  a  jurisdiction  which  at  the  time  of  and  before  the  pas- 
sage of  the  act  of  1883  did  not  in  fact  exist  at  all  except  as  to  any 
possible  claims  Avhich  might  have  been  presented  to  it  or  the  proper 
auditor  before  January  1,  187G." 

{Gi'lfpths  V.  United  States^  decided  by  Court  of  Claims.  Jan.  17, 
lOlG.) 


PAY  AND  ALLOWANCES:  Extra  duty  pay. 

>  A  former  enlisted  man  brought  suit  in  the  Court  of  Claims  for 
extra  duty  pay  alleged  to  be  clue  him  for  services  as  telephone  and 
telegraph  operator  at  the  general  hospital,  Presidio  of  San  Fran- 
cisco, from  November  8,  1900,  when  he  was  transferred  to  the  hos- 
pital, to  April  21.  1903,  when  he  was  discharged  by  reason  of  the 
expiration  of  his  term  of  enlistment.  He  was  assigned  to  this  duty 
by  verbal  orders  of  the  surgeon  commanding  and  was  excused  from 
other  duties,  calls,  details,  and  inspections.  The  regulations  in 
force  at  the  time  provided  that  "enlisted  men  of  the  several  staff 
departments  will  not  be  detailed  on  extra  duty  without  authority 
from  the  Secretary  of  War.  They  are  not  entitled  to  extra  duty 
pay  for  services  rendered  in  their  respective  departments."  A.  R. 
(1895)  107,  (1901)  185.  It  is  provided  by  statute  (R.  S.,  Sec.  1235) 
that  detail  for  employment  at  "  constant  labor"  shall  be  "  only  upon 


DIGEST    OF    OPINIOXS   OF    THE   JUDGE   ADVOCATE   GENERAL.       555 

the  written  order  of  a  commanding  officer,  when  such  detail  is  for  ten 
or  more  da3^s." 

lleld^  that  while  section  1235,  Revised  Statutes,  w^as  not  intended 
to  preclude  a  recovery  of  extra  duty  pay  due  where  there  had  been  a 
detail  to  extra  duty  by  competent  authority,  although  not  in  writ- 
ing, and  when  extra  duty  entitling  the  enlisted  man  to  extra  pay 
uiider  the  statute  had  been  actually  performed,  it  was  evident  that 
the  services  for  which  the  claimant  sought  extra  compensation  was 
not  extra  duty  within  the  statute,  inasmuch  as  he  was  on  regular 
duty  pertaining  to  the  hospital  service,  which  he  as  a  member  of 
the  Hospital  Corps  was  bound  to  perform  without  extra  pav  in  ac- 
cordance with  the  Act  of  July  13,  1892  (27  Stat.,  120),  which  pro- 
vided, in  substance,  that  all  necessary  hospital  services  shall  be  i^er- 
formed  by  the  members  of  the  Hospital  Corps. 

{Cnited  States  v.  Ross^  decided  bv  the  Supreme  Court,  Jan.  10, 
191G.) 

In  United  States  v.  Lincoln  C.  Andreirs  (decided  Feb.  21,  1016), 
the  Supreme  Court  of  the  United  States  affirmed  the  judgment  of  the 
Court  of  Claims  allowing  an  officer  of  the  Army  half  pay  for  time 
during  a  certain  leave  of  absence  granted  in  excess  of  the  statutory 
allowance  prescribed  by  Revised  Statutes  1265,  the  War  Department 
haA'ing  granted  the  leave  with  half  pay  for  a  definite  period  and 
afterwards  notified  the  officer  that  while  his  leave  of  absence  was  not 
revoked  his  absence  thenceforth  would  be  without  pay. 

The  court  held  that  the  pay  of  an  officer  of  the  Army  is  a  statu- 
tory incident  of  the  office;  that  the  statute  prescribes  the  pay  of  an 
officer  while  on  leave,  and  that  it  is  beyond  the  power  of  the  ex- 
ecutive authority  to  grant  a  leave  of  absence  on  condition  that  the 
pay  shall  be  other  than  what  the  statute  prescribes ;  and  further  that 
the  acceptance  of  a  leave  assumed  to  have  been  granted  upon  such 
condition  dees  not  constitute  a  legal  waiver  or  estoppel. 

In  Bnthr  v.  Sheriff  of  Columbia  County,  Flonnda  (decided  Feb. 
21,  1916),  the  Supreme  Court  of  the  United  States  reviewed  the 
legality  of  a  statute  of  the  State  of  Florida,  which  is  similar  to  that 
ot^  the'  majority  of  the  States  of  the  Union,  requiring  citizens^  to 
Avork  on  the  public  roads.  It  was  contended  that  the  statute  im- 
posed involuntary  servitude  in  violation  of  the  13th  Amendment, 
and  that  its  enforcement  would  deprive  persons  of  their  liberty  and 
property  without  due  process  of  law  contrary  to  the  14th  Amendment. 

The  court  held  that  from  Colonial  days  to  the  present  time  con- 
scripted labor  has  been  much  relied  on  for  the  construction  and 
maintenance  of  roads,  the  system  having  been  introduced  from 
England:  that  the  13th  Amendment  was  adopted  with  reference  to 
conditions  existing  since  the  foundation  of  the  Government,  and  it 
inti'oduced  no  novel  doctrine  with  respect  to  services  always  treated 
as  exceptional  and  "  certainly  was  not  intended  to  interdict  enforce- 
ment of  those  duties  which  individuals  owe  to  the  State,  such  as 
service  in  the  army,  militia,  on  the  jury,  etc."  The  court  further 
held  that  there  was  no  merit  in  the  claim  that  a  man's  labor  is  prop- 
erty the  taking  of  which  without  compensation  by  the  State  for  the 
building  and  maintenance  of  public  roads  violates  the  due-process 
clause  of  the  14th  Amendment. 


BULLETIN  13. 

Bulletin  1  WAR  DEPARTMENT, 

No.  13.     J  Washington,  Mcvy  6,  1916. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army,  for  the  months  of  March  and  xVpril,  1916,  and  of  cer- 
tain decisions  of  the  Comptroller  of  the  Treasury,  together  with 
notes  on  military  justice  prepared  under  the  direction  of  the  Judge 
Advocate  General,  is  published  for  the  information  of  the  service  in 
general. 

[2375247  A— A.  G.  O.] 

By  order  or  the  Secretary  of  War  : 

TASKER  H.  BLISS, 
Major  General^  Acting  Chief  of  Staff. 
Official  : 

H.  P.  McCAIN, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

CONTRACTS:   Annual  supplies — quantity  contemplated  by  the  agreement. 

A  contract  was  entered  into  with  a  concern  for  furnishing  for  the 
Army  such  quantity  of  ash  cans  as  required  for  the  Army  during 
the  fiscal  year,  the  estimated  number  being  stated  in  the  advertise- 
ment as  4,000  cans.  Subsequent  to  the  making  of  the  contract,  a  new 
use  was  found  for  ash  cans — their  use  as  coffee  boilers,  a  purpose  in 
no  wise  related  to  their  normal  use — and  as  a  result  the  number 
required  was  greatly  in  excess  of  the  original  estimated  quantity. 

Ileld^  that  the  contractors  were  obliged  to  furnish  ash  cans  under 
their  contract  only  for  the  purpose  contemplated  by  the  agreement, 
that  is,  their  use  as  ash  receptacles  or  some  related  use,  and  were 
not  obliged  to  furnish  them  for  use  as  coffee  boilers. 

(76-700,  J.  A.  G.,  April  15,  1916.) 


COITRTS-MAETIAIi:  Power  to  reduce  a  noncommissioned  officer  in  grade. 

The  question  was  submitted  whether  a  general  court-martial  has 
power  to  reduce  a  noncommissioned  officer  to  a  lower  grade. 

Held.,  that  while  by  sentence  of  a  court-martial  a  noncommissioned 
officer  may  be  reduced  to  the  ranks,  a  court-martial  has  no  power  to 
reduce  him  to  a  lower  grade  of  noncommissioned  officer,  as  the  latter 
procedure  involves  an  appointment  which  a  court-martial  is  not 
authorized  to  make. 

(6-151.1,  J.  A.  G.,  April  15,  1916.) 
556 


DIGEST  OF   OPINIONS  OF   THE  JUDGE  ADVOCATE   GENERAL.       557 

DETACHED  SERVICE:  Officer  performing  staff  ride  exercises. 

An  officer  who  in  the  performance  of  staif  ride  exercises  was 
accompanied  by  troops  requested  that  he  be  credited  with  duty  with 
troops  for  the  period  so  engaged,  under  the  act  of  April  27,  1914 
(38  Stat.,  357),  which  provides: 

"  Temporary  duty  of  any  kind  hereafter  performed  with  United 
States  troops  in  the  field  for  a  period  or  periods  the  aggregate  of 
which  shall  not  exceed  sixty  days  in  any  one  calendar  year  *  *  * 
shall  *  *  *  be  counted  as  actual  presence  for  duty  with  such 
(troop,  compan}^,  etc.)  organization  or  command." 

Held,  that,  as  it  is  not  essential  to  a  staff  ride  that  there  be  any 
troops  present  and  that  the  presence  of  a  small  body  of  troops  does 
not  alter  the  character  of  the  exercises,  the  officer  was  not  entitled  to 
credit  for  service  with  troops  as  requested. 

(6-124.4,  J.  A.  G.,  April  13,  191G.) 


ENLISTED  MEN:  Promotion  to  grade  of  second  lieutenant. 

In  the  Act  of  July  30,  1892  (27  Stat.,  336),  providing  for  a  com- 
petitive system  of  examination  of  enlisted  men  for  commission  as 
second  lieutenants,  one  of  the  requirements  of  candidates  is  that  they 
must  have  served  honorably  not  less  than  two  years  in  the  Army. 
The  Act  of  March  3,  1911  (36  Stat.,  1045),  prescribes  that  the  order 
of  appointments  to  fill  vacancies  in  the  grade  of  second  lieutenant 
shall  be,  (1)  cadets  graduated  from  the  United  States  Military 
Academy,  (2)  enlisted  men  whose  fitness  has  been  determined  by 
competitive  examination,  and  (3)  candidates  from  civil  life. 

Held,  in  the  case  of  an  enlisted  man  who  had  not  served  two  years 
in  the  Army,  that  he  was  not  eligible  for  examination  and  appoint- 
ment as  of  the  enlisted  men  class,  but  that  he  was  eligible  for  exam- 
ination for  appointment  as  of  the  civilian  class,  the  term  "  candidate 
from  civil  life,"  etc.,  in  the  Act  of  1911  evidently  being  intended  to 
impose  no  other  restriction  than  that  of  age  limits,  as  it  would  be 
unreasonable  to  deny  a  man  the  right  of  appointment  as  a  second 
lieutenant  on  account  of  his  having  had  service  in  the  Army  as  an 
enlisted  man. 

(64-213,  J.  A.  G.,  April  18,  1916.) 


PAY  AND  ALLOWANCES:  Officer  in  arrest  and  confinement;  deduction  of 
pay. 

An  officer  was  aajuagea  in  contempt  or  court  in  connection  with 
divorce  proceedings  and  confined  in  jail  for  several  days  imtil  he 
had  agreed  to  obey  the  decree  of  the  court. 

Ileld^  that  the  officer  was  not  entitled  to  pay  for  the  time  he  was 
absent  in  confinement,  as  the  case  came  within  the  sense  of  the  pro- 
hibition of  paragraph  1371,  A.  K. 

(74-111.4,  J.  A.  G.,  April  15,  1916.) 


PRIVATE  PROPERTY:    Civilian  clothing  lost  by  enlisted  men. 

A  chest  containing  the  personal  effects  of  an  enlisted  man  was 
broken  open  while  being  transported,  incident  to  the  service,  on  a 
U.   S.  transport  in  charge  of  the  Quartermaster  Corps.     Several 


558       DIGEST  OF   OPINIONS  OF  THE   JUDGE  ADVOCATE   GENERAL. 

articles  of  Chilian  clothing  were  stolen,  including  a  suit  of  clothes, 
extra  pair  of  trouyers,  hat,  and  shoes. 

Held.,  that  the  soldier  was  not  entitled  to  reimbursement  for  the 
civilian  clothing  as  the  Secretary  of  War  could  .not  properly  certify 
that. such  articles  were  "reasonable,  useful,  necessary,  and  proper" 
for  the  soldier  "  while  in  quarters,  engaged  in  the  public  service,  in 
the  line  of  duty,"  within  the  meaning  of  the  Act  of  March  3,  1885 
(23  Stat.,  350),  relating  to  claims  for  private  property  lost  or 
destroved. 

(18^61,  J.  A.  G.,  April  1,  191G.) 

DECISIONS  OF  THE  COMPTHOLLEU  OF  THE  TEEASURY. 

(Digests  prepared  iu  the  office  of  the  Judge  Advocate  General.) 

CIVILIAN  EMPLOYEES:  Burial  expenses  of  clerk.  Quartermaster  Corps. 

A  clerk  of  the  Quartermaster  Corps  with  station  at  Fort  Sam 
Houston,  Texas,  died  while  on  leave  of  absence  without  pay  at  San 
Antonio,  Texas.  The  body  was  buried  at  private  expense  and  the 
widow  applied  for  reimbursement.  In  the  Sundry  Civil  Appropria- 
tion Act  of  March  3,  1915  (38  Stat.,  843),  provision  was  made  for — 
""  interment,  or  preparation  and  transportation  to  their  homes,  of  tlie 
remains  of  civil  employees  of  the  Army  in  the  employ  of  the  War 
Department  who  die  abroad,  in  Alaska,  in  the  Canal  Zone,  or  on 
Army  transports,  or  who  die  while  on  duty  in  the  field  or  at  military 
posts  within  the  limits  of  the  United  States;     '•'     *     *." 

Held.,  that  reimbursement  was  not  authorized  because  the  appro- 
priation contemplates  an  expense  to  be  incurred  by  the  Quarter- 
master Corps,  and  further,  that  the  appropriation  is  only  applicable 
in  the  case  of  a  civilian  employee  who  dies  while  on  duty  in  the  field 
or  at  a  military  post,  and  that  the  instant  case  did  not  come  within 
either  of  these  conditions. 

(Comp.  W.  W.  Warwick,  April  12,  1916.) 


CONTS-ACTS:  Breach;  settlement  of  damage  by  Auditor. 

A  contractor  for  furnishing  oats  to  the  Quartermaster  Corps, 
having  failed  to  make  a  certain  delivery  at  the  time  required,  a  sup- 
ply of  oats  for  temporary  needs  was  purchased  in  the  open  market 
in  accordance  with  the  terms  of  the  contract,  at  an  excess  cost  of  $64 
over  the  contract  rate.  The  contractor  refused  to  remit  this  amount 
and  tlie  question  was  submitted  whether  the  disbursing  officer  was 
authorized  to  deduct  it  from  a  voucher  covering  supplies  furnished 
by  the  contractor  under  a  subsequent  contract. 

Held,  that  such  deduction  was  proper,  but  that  as  the  contractor 
had  declined  to  certif}'^  the  voucher  with  such  deduction  therefrom 
and  to  accept  payment  of  the  net  amount,  the  papers  should  be  for- 
warded to  the  Auditor  for  the  War  Department  for  settlement. 

(Comp.  W.  W.  Warwick,  Feb.  12,  1916.) 


HEAT  AjSTD  LIGHT:  Conditions  governing  payment  of  commutation  of  heat. 

Certain  officers  receiving  commutation  of  heat  (A.  E.,  1036),  pur- 
chased their  coal  from  the  Quartermaster  Corps  at  the  Government 
contract  rate. 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       559 

Ileld,  that  the  provision  in  the  act  of  March  4,  1915  (38  Stat., 
10(59),  "  for  commutation  of  quarters,  and  of  heat  and  light,  to  com- 
missioned officers,  *  *  *  "  contemplates  the  payment  of  commu- 
tation of  heat  to  officei-s  only  where  it  is  impracticable  to  furnish 
them  fuel  in  kind,  and  that  if  the  Government  can  and  does  fur- 
nish fuel  in  kind  to  an  officer,  whether  occupyini?  public  quarters  or 
quarters  other  than  public,  he  is  entitled  to  no  commutation  for  heat 
and  should  be  charged  for  only  the  fuel  supplied  him  in  excess  of  his 
autiiorized  allowance  for  the  quarters  occupied. 

(Comp.  W.  W.  Warwick.  March  9,  1916.) 


PAY  AND  AliliOWANCES:  Liability  of  soldier's  deposits  for  indebtedness 
to  United  States  and  to  post  exchange. 

A  soldier  who  was  discharged  for  fraudulent  enlistment  owed 
$1.50  to  a  quartermaster  laundry  and  $3  to  a  post  exchange,  and  the 
question  was  submitted  whether  these  debts  were  properly  chargeable 
against  pay  and  clothing  credits  and,  if  not,  whether  they  were  a 
proper  charge  against  a  deposit  of  $10  made  by  the  soldier  as  shown 
by  his  deposit  book. 

'  TIelcl,,  that  the  repudiation  of  the  soldier's  contract  for  fraud 
placed  him  in  the  position  of  having  legally  earned  no  pay  or  allow- 
ances, and  having  earned  none  there  were  none  unpaid  with  which 
to  pay  his  indebtedness  to  the  laundry  and  post  exchange,  except 
that  the  laundry  service  having  been  performed  by  the  government  at 
public  expense'  should  be  regarded  as  an  advance  of  pay  and  the 
appropriation  for  the  laundry  should  be  reimbursed  from  the  appro- 
priation for  the  pay  of  the  JLrmy. 

Held  further^  that  the  post  exchange  could  not  be  reimbursed  under 
the  same  principle  nor  could  such  indebtedness  be  satisfied  from  the 
soldier's  deposits  for  the  following  reasons;  viz:  Section  1305,  Re- 
vised Statutes,  as  amended  (34  Stat.,  246)  declares  that  soldiers'  de- 
posits shall  be  exempt  from  liability  for  their  debts.  This  exemption 
has  been  held  not  to  apply  to  any  indebtedness  to  the  United  States 
(16  Comp.  Dec,  566),  but  an  indebtedness  to  a  post  exchange  is  not 
an  indebtedness  to  the  United  States  and  the  Government  assumes  no 
liability  therefor  further  than  to  use  a  part  of  the  soldiers  pay.  if 
there  be  any,  to  protect  the  exchange.  Therefore,  the  inhibition  in 
section  1305,  R.  S.,  that  deposits  shall  be  exempt  from_  liability  for 
the  soldier's  debts  applies  to  any  indebtedness  which  is  not  an  in- 
debtedness to  the  United  States,  and  as  a  post  exchange,  in  the  pur- 
view of  this  statute,  is  on  the  same  footing  as  an  individual,  the  sol- 
dier's deposits  and  interest  were  payable  to  him  without  diminution 
on  account  of  such  indebtedness. 

(Comp.  W.  W.  Warwick,  April  20,  1916.) 

XoTE. — Paragraph  1368,  A.  R.,  will  be  amended  so  as  to  conform 
with  the  above  ruling. 

TRANSPORTATION:  Excess  bagg-age  on  change  of  station. 

In  the  shipment  of  an  officer's  baggage  on  change  of  station  an  auto- 
mobile was  loaded  in  the  car  with  household  goods  and  professional 
books.  The  excess  weight  of  the  officer's  baggage  allowance  consisted 
of  1,370  pounds  of  household  goods  and  the  automobile  weighing  2,000 


560       DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

pounds.  The  household  goods  and  books  took  a  carload  rating  of 
$1  per  cwt.  and  the  rate  on  the  automobile,  which  was  not  included  in 
the  carload  rating,  was  $6  per  cwt. 

Held^  that  the  proper  method  of  computation  was  as  set  forth  in 
22  Comptroller's  Decisions,  195,  as  folloAvs: 

"  The  reimbursement  required  to  be  collected  from  an  Army  officer 
for  the  transportation  of  his  excess  over  the  regulation  change  of  sta- 
tion allowance  of  baggage  is  the  proportionate  charge  for  the  carload 
shipment  of  which  it  forms  a  part,  and  in  addition  thereto  the  total 
charge  for  articles  not  included  in  said  carload  rating;"  and  further, 
that  when  an  officer  ships  baggage  on  change  of  station,  whether  all 
the  shipment  is  on  a  Government  bill  of  lading  or  a  part  is  on  one  or 
more  commercial  bills  of  lading,  and  the  total  shipment,  including  an 
automobile,  exceeds  the  allowance,  any  excess  over  the  allowance  shall 
be  considered  to  be  in  whole  or  in  part,  as  the  case  may  be,  caused  by 
the  weight  of  the  automobile,  and  such  excess  will  be  at  the  cost  of  the 
officer. 

(Comp.  W.  W.  Warwick,  April  24,  1916.) 


NOTES  ON  ADMINISTEATION  OF  MIUTAEY  JUSTICE. 

(Prepared  under  the  direction  of  the  Judge  Advocate  General  of  the  Army  upon 
the  review  of  records  of  general  courts-martial  trials.) 

EVIDENCE:  Necessary,  neg-lect  to  procure. 

A  soldier  was-  recently  convicted  of  feloniously  assaulting  another 
by  striking  him  on  the  head  with  a  dangerous  instrument,  and  sen- 
tenced to  be  dishonorably  discharged,  with  the  usual  forfeitures,  and 
to  confinement  at  hard  labor  in  a  penitentiary  for  two  years.  Differ- 
ent opinions  could  reasonably  be  held  as  to  whether  or  not  the  instru- 
ment was  of  an  essentially  dangerous  character.  It  was  proved  that 
the  assault  upon  the  soldier  rendered  him  unconscious  and  that  he  was 
on  that  account  placed  upon  an  operating  table,  but  the  record  dis- 
closes no  effort  to  procure  evidence  as  to  the  extent  and  character  of 
the  injuries  or  as  to  whether  or  not  an  operation  was  performed. 
Evidence  in  these  respects  should  have  been  procured,  especially  in 
view  of  the  alleged  dangerous  character  of  the  instrument.  In  the 
absence  of  such  evidence  it  was  incompetent  for  the  judge  advocate  in 
his  argument  to  inform  the  court  as  to  the  nature  of  the  injuries 
inflicted  upon  the  assaulted  soldier. 

An  officer  was  recently  tried  upon  and  acquitted  of  a  charge  of 
drunkenness,  it  being  alleged  in  one  specification  that  he  had  become 
so  drunk  as  to  make  it  necessary  to  place  him  in  a  hospital.  The  phy- 
sician who  advised  this  course  and  who  attended  the  officer  while  in 
the  hospital  was  not  called  as  a  witness  nor  does  the  record  disclose 
any  reason  for  his  not  being  called.  The  physician  was  obviously 
a  necessary  witness,  the  other  witnesses  having  given  no  satisfactory 
evidence  as  to  the  officer's  condition  at  the  time  of  his  removal  to  the 
hospital  nor  any  whatever  as  to  his  condition  for  the  three  days  while 
therein.  Failure  to  procure  the  evidence  of  the  physician  appears  to 
have  been  a  serious  neglect  of  duty  on  the  part  of  both  the  judge 
advocate  and  the  court. 


BULLETIN  18. 

Bulletin  \  WAR  DEPARTMENT, 

No  18.     J  Washington,  Juli/  6',  1916. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General  of 
the  Army  for  the  months  of  May  and  June,  191G  (two  opinions 
printed  in  full),  and  of  certain  decisions  of  the  Comptroller  of  the 
Treasury,  is  published  for  the  information  of  the  service  in  general. 

[2422420,  A.  G.  O.] 

By  order  or  the  Secretary  of  War: 

H.  L.  SCOTT, 

Major  General,  Chief  of  kta-jf. 
Official  : 

H.  P.  McCAIN, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

June  5,  1916. 
MEMORANDUM  for  The  Adjutant  General. 

Subject:  Construction  of  certain  provisions  of  the  national  defense 
act  approved  June  3,  191(3. 

Upon  the  questions  submitted  by  you  in  your  memorandum  of 
the  24th  ultimo,  I  heretofore,  as  you  know,  came  to  certain  tentative 
conclusions  with  which  I  acquainted  you.  In  the  light  of  your  re- 
cent supplemental  memorandum  concerning  these  tentative  conclu- 
sions, which  I  have  considered  with  great  care,  I  am  now  prepared 
to  make  official  response  to  your  inquiries,  for  the  purpose  of  setting 
them  out  in  the  language  in  which  they  are  expressed  and  consider- 
ing them  in  the  order  submitted : 

FIRST. 

'"''Details  in  staff  departments.— T\\q  present  law  provides  that  an 
officer  detailed  in  The  Adjutant  General's  Department  with  the 
grade  of  major,  on  promotion  to  the  grade  of  lieutenant  colonel, 
may  be  redetailecl  in  the  department  without  regard  to  the  detached- 
service  law  for  other  periods  of  four  years.  Does  the  language  of 
this  act,  providing  that  when  an  officer  is  so  promoted  '  he  may  be 
permitted  to  serve  out  the  period  of  his  detail,'  repeal  the  present 
provisions  of  law  ?  " 

It  is  my  opinion  that  the  provision  of  the  bill  to  wdiich  you  refer 
relates  not  to  the  detached-service  law,  but  solely  to  the  provisions 
of  law  fixing  the  number  of  officers  of  the  grade  to  which  the  detailed 
officer  is  promoted  in  the  staff  corps  in  which  he  is  serving,  and 
serves  to  increase  temporarily  that  number  so  as  to  permit  of  his 
retention  if  desirable. 

93608°— 17 3G  561 


562       DIGEST  OJF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

SECOND. 

^' Porto  Rican  RegiTiient  of  Infmitry  {sec.  ^i).— This  section  of  the 
bill  provides  for  the  appointment  from  the  senior  captains  in  regi- 
mental rank  of  the  Porto  Eican  Eegiment  of  Infantry  to  fill  vacan- 
cies in  the  grades  of  lieutenant  colonel  and  major,  created  by  this 
act.  Should  captains  so  appointed  be  examined  under  the  general 
rules  prescribed  for  advancement  by  promotion  ?  " 

My  opinion  is  that  the  provision  of  the  bill  to  which  you  refer 
does  not  require  that  the  appointment  shall  be  subject  to  the  exam- 
ination prescribed  for  advancement  by  promotion.  If  it  should  be 
held  otherwise  no  conceivable  meaning  could  be  assigned  to  the  ex- 
ception in  the  first  paragraph  of  section  21,  wherein  it  is  provided 

that— 

"All  vacancies  created  l)y  this  act  or  occurring  hereafter  in  com- 
missioned offices  of  said  regiment  above  the  grade  of  second  lieu- 
tenant and  below  the  grade  of  colonel  shall,  except  as  hereinafter 
provided  to  the  contrary^  be  filled  by  promotion  according  to  senior- 
ity in  the  several  grades  and  within  the  regiment,  subject  to  the 
examination  prescribed  by  section  3  of  the  act  of  Congress     *     *     *," 

etc. 

And,  additionall}^,  the  word  "  appointments,*'  as  used  in  the  provi- 
sion under  examination,  would  appear  to  have  been  used  in  contra- 
distinction to  the  "promotion"  mentioned  and  contemplated  in  the 
said  first  paragraph  of  said  section  prescribing  a  system  of  ex- 
amination. 

Relative  to  the  clause  requiring  appointment  to  the  field  grades 
in  this  regiment  to  be  made  from  "  the  senior  captains  in  regimental 
rank  of  the  Porto  Rican  Regiment  mentioned  in  the  act  of  March  4, 
1915,"  you  ask  in  your  supplemental  memorandum  the  further 
questions : 

{a)  "Does  the  clause  mean  the  four  captains  at  the  head  of  the 
list,  or  does  it  describe  all  the  captains  mentioned  in  that  act  as  the 
senior  captains?  "  and 

{h)  "Must  the  field  officers  be  appointed  from  the  four  at  the 
head,  or  may  any  one  of  them  be  appointed  lieutenant  colonel,  leav- 
ing the  majority  to  the  others,  attention  being  iuA'ited  to  the  last 
proviso  of  section  21?  " 

Responding  to  these  questions  as  I  understand  them,  it  is  iny  view 
{a)  that  the  clause  has  reference  to  the  four  captains  at  the  head  of 
the  list  mentioned  in  the  act  of  March  4,  1915.  If  this  were  not  so 
and  the  reference  were  to  all  the  captains  mentioned  in  that  act 
no  meaning  whatever  could  be  assigned  to  the  word  "  senior,"  which, 
in  view  of  the  subject  matter  of  the  clause,  is  a  kej'^word  thereof. 
The  word  "  senior  "  conflicts  with  such  a  general  reference.  If  Con- 
gress had  intended  to  refer  to  all  of  the  captains  mentioned  in  that 
act  it  could  have  done  so  by  omitting  the  word  "  senior  "  altogether ; 
l)ut  had  it  desired  to  go  further  and  describe  the  entire  class  the 
adjective  "permanent"  used  as  descriptive  of  those  officers  men- 
tioned in  said  act  very  appropriately  could,  and  probably  would, 
have  been  used  for  that  purpose. 

And  it  is  my  further  view  {h)  that  the  four  field  officers  must  be 
appointed  from  the  four  seniors  above  mentioned,  but  that  in  view 
of  the  fact  that  the  bill  provides  for  "  appointments,"  the  appoint- 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       563 

mcnts  are  in  no  respect  to  be  governed  by  seniority  among  the  four 
eligibles,  and  that  any  one  of  them  may  be  appointed  to  anj'  one  of 
the  fiehl  ofhces  without  regard  to  liis  rank  as  to  the  otlier  three. 

In  this  connection  1  may  also  say  that  in  the  absence  of  a  more 
specific  inquiry  I  do  not  now  consider,  as  I  do  not  perceive  the  rele- 
vant eifect  of,  the  last  proviso,  to  which  my  attention  was  in\'ited. 

THIKD. 

"  Examination  of  field  officers. — In  section  24  it  is  pro\ided  '  that 
the  provisions  of  existing  law  requiring  examinations  to  determine 
fitness  for  promotion  of  officers  of  the  Arni}^  are  hei-ebj^  extended  to 
include  promotion  to  all  grades  below  that  of  brigadier  general.'  It 
is  further  provided  'that  all  vacancies  created  or  caused  b}'  the  fore- 
going provisions  of  this  section  in  grades  above  that  of  second  lieu- 
tenant shall  be  filled  by  promotion  according  to  law  existing  on  and 
before  the  date  of  approval  of  this  act,  and  subject  to  the  examina- 
tions prescribed  by  existing  law.'  These  two  paragraphs  of  the  bill 
are  in  conflict.  To  show  the  practical  effect  of  these  provisions,  the 
number  of  lieutenant  colonels  of  Infantry,  for  example,  promoted 
to  the  grade  of  colonel  due  to  the  detached  list  is  ten.  The  number 
of  promotions  from  lieutenant  colonel  to  colonel,  due  to  the  increase 
in  the  Infantry  arm.  on  July  1,  1916,  by  seven  regiments,  is  seven. 
The  literal  interpretation  of  the  two  provisions  of  the  act  would 
api)arently  require  ten  lieutenant  colonels  of  Infantry  to  be  pro- 
moted as  now"  provided  by  law  without  examinaticuis  and  eleven  to 
be  promoted  with  examination." 

The  difference  of  language  is  too  manifest  to  be  disregarded  or 
composed.  There  is  no  conflict  between  a  rule  which  requires  an 
examination  in  one  case  and  not  in  the  other.  It  is  a  matter  of  dif- 
ference, not  conflict.  Therefore  there  is  no  room  for  interpretation. 
Where  legislative  language  is  so  plain,  we  do  not  have  to  seek  the 
legislative  reasons  for  the  different  rules,  though  the  suggestion  does 
come  that  Congress  conceived  that  the  detached  service  list  should  be 
organized  first  and  desired  to  avoid  the  delay  due  to  the  examina- 
tions; and  perha|:)s  also  that,  inasmuch  as  senior  officers  for  the  most 
part  Avill  be  promoted  to  the  grades  of  lieutenant  colonel  and  colonel 
on  that  list,  a  presumption  of  demonstrated  competency  was  made  in 
their  favor.  Upon  the  other  side  it  'mo.j  \va\q  been  presumed  that 
thei-e  would  be  of  necessity  some  delay  in  establishing  the  new  or- 
ganization, affording,  without  prejudicing  the  service  thereby,  an 
opportunity  for  examination  for  the  vacancies  due  to  the  increments. 

Such  was  my  tentative  view,  and  upon  a  careful  reconsideration 
I  am  not  convinced  of  any  error  therein,  notwithstanding  the  rea- 
sons advanced  in  your  supplemental  memorandum  for  a  contrary 
conclusion.     You  sa^^  that — 

"The  act  specifically  provides  for  the  promotions  incident  to  the 
detached  list  and  those  clue  to  the  first  increment  in  organizations  of 
the  Army  to  become  effective  at  the  same  time,  July  1,  1916;  and 
this  office  can  not  agree  with  the  suggestion  that  Congress  conceited 
that  the  detached  service  list  should  be  organized  first.  It  is  sug- 
gested that  that  portion  of  the  presumption  be  omitted  from  the  dis- 
cussion, leaving  it  to  the  Secretary  of  War  to  determine  adminis- 


564       DIGEST  OF  OPINIONS  OF   THE   JUDGE  ADVOCATE   GENERAL. 

tratively  the  officers  who  must  be  examined  and  who  must  not  be 
examined  under  the  laAV." 

It  seems  to  me  ratlier  futile  to  admit  that  the  law  clearly  pre- 
scribes those  who  are  and  those  wdio  are  not  to  be  examined,  only 
to  haA^e  the  Secretary  of  War  disregard  the  distinction  and  substitute 
administrative  will  for  the  legal  rule.  That  would  not  only  put  the 
Secretary  in  an  unenviable  position,  without  general  rule  or  policy 
to  guide  him,  but  would  transgress  what  is  plainly  prescribed.  More- 
over, I  think  it  is  wrong  to  say  that  the  bill  specifically  provides  that 
the  promotions  incident  to  the  detached  list  and  those  due  to  the 
increment  shall  become  effective  at  the  same  time,  July  1,  1916.  On 
the  contrary,  it  expressly  enjoins  that  "  on  July  1,  1916,  the  line  of 
the  Army  shall  be  increased  by  822  extra  officers  *  *  *,"  And, 
again,  that — 

""  The  extra  officers,  together  with  the  200  detached  officers  j^ro- 
vided  for  by  the  act  of  Congress  approved  March  3,  1911,  shall,  on 
and  after  July  i,  1916,  constitute  the  Detached  Officers'  List." 
So,  then,  in  legal  theory  at  least,  the  promotions  necessary  to  supply 
the  officers  for  the  Detached  Officers'  List  must  be  made  on  July  1, 
1916,  and  the  detachments  made  as  soon  as  practicable  thereafter. 
As  regards  the  increments,  however,  the  language  is  significantly 
different.    As  to  them,  it  is  provided : 

"  The  increases  in  the  commissioned  and  enlisted  personnel  of  the 
Regular  Army  provided  by  this  act  shall  be  made  in  five  annual 
increments  *  *  *.  Officers  promoted  to  vacancies  created  or 
caused  by  the  addition  of  the  first  increment  shall  be  promoted  to 
rank  from  July  1,  1916     *     *     *." 

This  language  does  not  direct  that  the  actual  promotions  shall  be 
made  on  July  1,  1916,  but  plainly  recognizes  the  fact  that  the  pro- 
motion may  not  be  made  on  that  date,  by  providing,  in  effect,  that 
whenever  made  the  promotions  shall  date  from  July  1,  If  the  differ- 
ence exists,  as  is  conceded,  it  ought  to  be  preserved  and  not  destroyed 
by  substituting  for  it  an  administrative  procedure  which,  as  I  see  it, 
has  no  basis  in  the  bill  or  other  law. 

FOURTH. 

"  Order  of  fiUing  vacancies  in  the  grade  of  second  lieutenant  cre- 
ated hy  this  act  {sec,  24).- — The  law  provides  '(2)  under  the  provi- 
sions of  existing  law,  of  enlisted  men.  including  officers  of  the  Philip- 
pine Scouts,  *  *  *.'  Officers  of  the  Philippine  Scouts  are  not  en- 
listed men,  and  under  the  provisions  of  existing  law  they  are  ex- 
amined for  appointment,  as  civilians." 

The  term,  "  enlisted  men,  including  officers  of  the  Philippine 
Scouts,"  is  designed  to  combine  enlisted  men  and  officers  of  the 
Philippine  Scouts  into  a  single,  joint,  eligible  class,  having  prefer- 
ence in  accordance  with  the  act.  The  officers  of  Philippine  Scouts, 
being  closely  associated  and  placed  in  the  preferential  class  con- 
jointly with  enlisted  men,  ought  to  have  the  same  qualifications  as 
enlisted  men.  ^  This  would  appear  to  be  so  by  the  mere  association  of 
terms,  and  this  view  is  additionally  supported  by  the  use  of  the  in- 
troductory words  "under  the  provisions  of  existing  law,"  which,  in  a 
sense,  suggests  that  those  provisions  of  law  which  establish  the 
eligibility  of  enlisted  men  should  apply  equally  to  the  officers  of  the 
scouts.    The  officers  of  scouts  to  be  eligible  by  this  provision  should 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       565 

have,  therefore,  the  qualifications  prescribed  by  existing  law  for  en- 
lis-ted  men.  See  act  of  July  30,  1802  (27  Stat.,  33G).  It  would  fol- 
low, then,  that  only  those  olHcers  of  the  scouts  who  are  citizens  of 
the  United  States  or  have  declared  their  intention  to  become  such 
and  who  possess  the  other  prescribed  qualifications  are  eligible  to 
this  class. 

I  first  thought  that  inasmuch  as  the  substantive  part  of  the  provi- 
sion used  the  term  "  enlisted  men,  including  officers  of  the  Philippine 
Scouts,"  and  the  proviso  used  simply  the  term  "  enlisted  men,"  omit- 
ting the  words  "  including  Philippine  Scouts,"  Congress  thus  indi- 
cated a  distinction  between  the  two  as  to  eligibility  based  upon  serv- 
ice.   But  you  very  properly  saj^ : 

"  It  seems  that  if  the  officers  of  the  scouts  are  to  have  the  qualifica- 
tions prescribed  by  law  for  enlisted  men,  they  should  have  the  same 
length  of  service  among  other  qualifications." 

Upon  further  consideration,  I  think  that  is  the  result  to  be  reached 
upon  fair  construction,  notwithstanding  the  difficulty  of  the  language 
indicated.  Certainly  the  provisions  establishing  eligibility  ought  to 
be  liberally  construed  in  behalf  of  the  beneficiaries.  Furthermore,  ic 
could  well  be  maintained  that  inasmuch  as  the  substantive  part  of  the 
provision  established  an  order  consisting  of  both  enlisted  men  and 
officers  of  scouts — the  word  "  including "  being  used  thus  cumula- 
tively— the  proviso  has  reference  to  all  included  within  the  order, 
and  that  its  sole  purpose  was  to  change  the  rule  from  the  present  two 
years'  to  one  year's  service  without  discriminating  as  between  the 
classes  constituting  the  order. 

FIFTH. 

"  Transfer  of  officers  {sec.  £5). — The  bill  provides  for  the  promo- 
tion or  transfer  without  promotion  of  officers  of  one  branch  of  the 
line  of  the  Army  to  another  below  the  grade  of  lieutenant  colonel, 
subject  to  certain  examinations.  Do  officers  so  transferred  take  their 
place  in  the  lineal  list  of  the  arm  to  which  transferred  according  to 
relative  rank  existing  at  the  time  of  transfer?  " 

In  my  judgment  the  officers  transferred  in  accordance  with  the  pro- 
vision should  take  their  place  in  the  lineal  list  of  the  arm  to  which 
transferred  according  to  their  relative  rank  at  the  time  of  the  trans- 
fer. I  reach  this  conclusion  principally  for  the  reason  that  it  is  ex- 
pressly declared  that  the  transfers  provided  by  this  section  are  "  for 
the  purpose  of  lessening  as  much  as  possible  inequalities  of  promo- 
tion due  to  the  increase  in  the  number  of  officers  of  the  line  of  the 
Army  under  the  provisions  of  this  act";  that  is  to  say,  that  in  mak- 
ing these  transfers  the  inequalities  of  promotion  that  are  not  brought 
about  by  the  increases  due  to  this  act  should  not  be  admitted  to  con- 
sideration. On  principle,  and  having  in  view  the  restricted  purpose 
of  the  transfers  here  authorized,  I  can  see  no  reason  wdiy  the  officers 
transferred  for  this  purpose  should  have  their  relative  rank  dis- 
turbed; indeed,  I  do  not  see  how  their  relative  rank  could  be  dis- 
turbed except  upon  considerations  based  upon  inequalities  due  to 
increases  not  caused  by  this  act.  However,  for  the  present,  I  can  look 
at  the  question  only  as  it  is  presented ;  that  is,  in  its  large  and  indefi- 
nite outlines;  and  it  may  well  be  that  administrative  and  other 
proper  considerations  may  arise  to  suggest,  if  not  require,  modifica- 
tion of  this  general  view. 


5GG       DIGEST  OF   OPINIONS  OF   THE   JUDGE  ADVOCATE   GENERAL. 

SIXTH. 

^'■Limits  of  age  for  enlistTnent  {sec.  27). — The  act  provides  'that 
no  person  under  the  age  of  18  years  shall  be  enlisted  or  mustered 
into  the  military  service  of  the  United  States  without  the  written 
consent  of  his  parents  or  guardians.'  Does  this  provision  supersede 
the  present  provision  requiring  that  no  person  shall  be  enlisted  be- 
tween the  ages  of  21  and  18  without  the  consent  of  their  parents  or 
guardians,  or  does  it  extend  the  provision?  " 

The  provision  of  existing  law  that  has  to  be  considered  here  is  that 
found  in  section  lilt,  Hevised  Statutes,  reading  as  follows: 

"  No  person  under  the  age  of  twenty-one  years  shall  be  enlisted  or 
mustered  into  the  military  service  of  the  United  States  without  the 
written  consent  of  his  parents  or  guardian:  Provided,,  That  such 
minor  has  such  j^arents  or  guardian  entitled  to  his  custody  and  con- 
trol." 

The  provision  of  the  act,  "  that  no  person  under  the  age  of  18  years 
shall  be  enlisted  or  mustered  into  the  military  service  of  the  United 
States  without  the  written  consent  of  his  parents  or  guardian,"  is  in 
fori  materia  with,  and  must  be  construed  with  and  as  an  amendment 
of,  said  section  1117,  Eevised  Statutes,  and  has  the  effect  of  substitut- 
ing the  age  of  18  for  the  age  of  21  years  as  there  prescribed.  The 
result  must  be  to  render  unnecessary  the  parental  consent  between 
the  ages  of  18  and  21  years  which  is  required  by  said  section  1117, 
Eevised  Statutes, 

SEVENTH. 

'•  The  organization  of  headquarters  companies  by  the  bill  gives 
regimental  adjutants  service  with  troops  in  the  meaning  of  the  de- 
tached service  law.  Does  their  credit  for  this  service  begin  on  ap- 
proval (of  the  bill)  by  the  President  or  on  some  other  date?  " 

As  regards  the  application  of  the  bill  to  existing  regiments,  it  is 
self-executing  and  operates  from  the  date  of  its  approval  upon  the 
headquarters  company  whose  elements  are  already  in  existence  and 
by  the  bill  are  combined  into  the  single  organization  as  denomi- 
nated. Even  if  a  minor  element  or  so  be  lacking  all  substantial  ele- 
ments of  the  new  organization  are  already  in  existence,  and  such  a 
slight  deficiency  would  not  prevent  the  immediate  operation  of  the 
act.  A  regimental  adjutant,  therefore,  actually  present  in  a  duty 
status  with  respect  to  such  a  headquarters  company  is,  and  must  be 
held  to  be.  on  duty  with  a  company  within  the  meaning  of  the  de- 
taclied  service  law. 

EIGHTH. 

'"''Application  of  section  £4  with  reference  to  increase  in  five  incre- 
ments. — The  Inspector  General's  Department,  for  example,  is  in- 
creased by  one  colonel.  Does  the  bill  make  it  mandatory  that  this 
increase  should  take  place  only  when  an  entire  unit  is  reached  by  the 
sum  of  successive  previous  increments,  or  may  it  legall}^  be  made  at 
the  date  of  some  previous  increment :  for  example,  at  the  time  of  the 
third  increment  of  the  case  in  point  the  Inspector  General's  Depart- 
ment will  have  acquired  3/5.  a  major  fraction  of  one  colonel." 

In  dealing  with  fractions  the  administrative  rule  would  naturally 
be.  vv'here  none  other  is  prescribed,  to  regard  major  fractions  as  units, 


DIGEST  OF  OPIlSriONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       567 

carrying  the  minor  fractions  forward  for  future  adjustment.  I  can 
not  conceive  of  the  sliiihtest  reason  Avhy  in  the  example  cited  such 
regard  should  not  be  had  for  the  major  fraction  so  that,  applying 
the  rule,  the  bureau  mentioned  would  be  entitled  to  the  increase  of 
one  colonel  upon  the  third  increment.  Additional  support  for  this 
view  is  to  be  gathered  out  of  the  act,  wherein  it  requires  that  the 
increments  shall  be  one-fifth  of  the  total. 

E.  H.  Ckoavdek, 
(64-221.4.)  Judge  Advocate  General. 


June  19,  191G. 

MEMORANDUM  for  the  Chief  of  the  War  College  Division  of  the  General 
Staff. 

Subject:  Interpretation  of  section  111  of  the  national  defense  act  of 
June  3,  1916. 

1.  Your  memorandum  of  June  17  requests  an  opinion  on  certain 
questions  which  will  be  hereinafter  stated  in  connection  with  the  an- 
swers thereto. 

2.  Question  1 : 

"Will  the  National  Guard  when  drafted  into  the  Federal  service, 
as  provided  in  sec.  Ill,  act  approved  June  3,  191G,  be  available  for 
an  offensive  campaign  in  Mexico?  " 

Section  111  of  the  national  defense  act  provides: 

"  When  Congress  shall  have  authorized  the  use  of  the  armed  land 
forces  of  the  United  States,  for  any  purpose  requiring  the  use  of 
troops  in  excess  of  those  of  the  Eegular  Army,  the  President  may, 
under  such  regulations,  including  such  physical  examination,  as  he 
ma}'  prescribe,  draft  into  the  mUitary  service  of  the  United  States, 
to  serve  therein  for  the  period  of  the  war  unless  sooner  discharged, 
any  or  all  members  of  the  National  Guard  and  of  the  National  Guard 
Eeserve.  All  persons  so  drafted  shall,  from  the  date  of  their  draft, 
stand  discharged  from  the  militia,  and  shall  from  said  date  be  sub- 
ject to  such  laws  and  regulations  for  the  government  of  the  Army 
of  the  United  States  as  may  be  applicable  to  members  of  the  Vol^^ii- 
teer  Army,  and  shall  be  embodied  in  organizations  corresponding  as 
far  as  practicable  to  those  of  the  Regular  Army  or  shall  be  otherwise 
assigned  as  the  President  may  direct     '^     *     *." 

The  power  of  Congress  to  provide  for  drafting  into  the  Army  of 
the  United  States  the  citizens  of  the  country  capable  of  bearing  arms 
was  exercised  during  the  Civil  War,  and  its  right  to  do  so  was  up- 
held by  the  courts.  The  persons  so  drafted,  though  drawn  from  the 
militia,  were  not  called  forth  as  such  under  the  militia  clauses  of  the 
Constitution,  but  were  incorporated  into  the  armies  of  the  United 
States  under  the  constitutional  power  to  raise  armies.  {Kneedler  v. 
Lane,  45  Pa.  St.,  238.)  Section  111  provides  that  the  persons  drafted 
pursuant  to  its  provisions  shall  "  stand  discharged  from  the  militia," 
thusi  clearly  indicating  that  the  persons  so  drafted  shall  be  no  longer 
regarded  as  militia  but  as  a  part  of  the  Army  of  the  United  States. 
Being  no  longer  militia  their  emplo,yment  is  not  restricted  to  the 
purposes  for  which  the  militia  as  such  may  be  employed— the  execu- 
tion of  the  laws,  suppression  of  insurrection,  and  repelling  of  inva- 
sion.   They  are  subject  to  the  orders  of  the  President  of  the  United 


568       DIGEST  OF  OPINIONS  OF   THE   JUDGE  ADVOCATE   GENEEAL. 

States,  like  members  of  the  Eegular  or  Volunteer  Army,  and  may  be 
used  for  general  war  purposes.  The  evident  purpose  of  the^  au- 
thority to  draft  (sec.  Ill)  and  of  the  oaths  prescribed  for  officers 
(sec.  73)  and  for  enlisted  men  (sec.  70)  is  to  make  the  National 
Guard  available  for  general  war  purposes.  The  question  is  answered 
in  the  affirmative. 

3.  Question  2 : 

"Assuming  the  answer  (to  the  preceding  question)  to  1)e  'Yes,' 
if  it  is  desired  to  use  the  existing  units  of  the  Organized  Militia  for 
service  in  Mexico,  may  the  President  elect  either  of  the  following 
methods  of  bringing  them  into  the  service  of  the  United  States: 

"(«)  Draft  them  into  the  service  under  the  act  of  June  3,  1916;  or 

"  ( & )  Incorporate  them  into  the  Vohmteers  under  the  act  of  April 
25,  1914;  or 

"  Is  the  President  now  restricted  only  to  {a)  ?  " 

It  should  first  be  observed  that  the  President  may  neither  draft 
members  of  the  National  Guard  nor  incorporate  the  National  Guard 
into  a  Volunteer  Army  w^ithout  further  specific  authorization  by 
Congress.    Section  111  of  the  national  defense  act  provides  that: 

"  \Yhen  Congress  shall  have  authorized  the  use  of  the  armed  land 
forces  of  the  United  States  for  any  purpose  requiring  the  use  of 
trooj)s  in  excess  of  those  of  the  Regular  Army,  the  President  may 

sis     *     *     draft     *     *     * " 

A  proposed  joint  resolution  designed  to  give  the  President  the 
power  to  draft  the  National  Guard  under  section  111  was  submitted 
by  this  office  to  the  Chief  of  Staff  June  15,  1916. 

Section  2  of  the  Volunteer  Army  act  of  April  25,  1914,  provides: 

"  That  the  volunteer  forces  shall  be  raised  *  *  *  only  after 
Congress  shall  have  authonzed  the  President  to  raise  such  a  force." 

It  is,  therefore,  evident  that  the  answer  to  the  present  question  de- 
pends upon  the  authority  that  Congress  may  give  in  the  future.  It 
may  authorize  either  of  these  methods  for  the  employment  of  the 
National  Guard,  and,  should  it  authorize  one  and  not  the  other,  the 
President  would  be  limited  to  the  methods  authorized  and  could 
exercise  no  election  as  between  the  two  methods. 

4.  Question  3 :  * 

"Assuming  that  the  President  has  the  option  of  employing  either 
method,  can  he  draft  part  of  the  National  Guard  under  the  new  law 
to  meet  a  sudden  emergency  and  use  the  remainder  under  the  act  of 
April  25,  1915,  as  a  nucleus  for  a  more  deliberate  volunteer  organi- 
zation?" 

The  above  question  assumes  that  Congress  has,  pursuant  to  section 
111  of  the  national  defense  act,  authorized  a  draft  of  the  National 
Guard,  and  has,  pursuant  to  the  Volunteer  Army  act  of  April  25, 
1914,  authorized  the  raising  of  a  volunteer  force.  Section  111  pro- 
vides that : 

"  The  President  may  *  *  *  draft  *  *  *  any  or  all  mem- 
bers of  the  National  Guard  and  of  the  National  Guard  Reserve." 

It  is,  therefore,  clear  that  the  President,  in  exercising  the  power  of 
draft,  is  not  required  to  draft  the  National  Guard  as  a  whole,  but 
may  draft  a  part  thereof,  in  his  discretion.  He  could,  therefore, 
utilize  the  remainder  of  the  National  Guard  as  a  part  of  a  Volunteer 
Army  in  the  manner  prescribed  in  section  3  of  the  Volunteer  Army 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       569 

act.  It  may  be  here  observed,  however,  that  enlistment  in  the  Vol- 
unteer Army,  is  a  voluntary  nuitter,  and  the  President  can  not  com- 
pel the  National  Guard  organizations  to  enter  the  same. 

E.  H.  Crowder, 
(58-141.)  Judge  Advocate  General. 

ARMY  PRESERVE:  Furlough  of  enlisted  men  indebted  to  the  United  States. 

The  following  questions  were  submitted: 

"  Should  a  man  who  is  otherwise  eligible  be  furloughed  to  the 
Army  Reserve  at  the  expiration  of  three  years'  service,  under  the 
following  conditions : 

"(«)  When  he  is  indebted  to  the  United  States  for  court-martial 
fines. 

"(5) When  any  other  indebtedness  of  the  soldier  to  the  Govern- 
ment exceeds  amounts  due  him." 

The  act  of  August  24,  1912  (37  Stat.,  691),  providing  for  a  seven- 
year  enlistment — the  first  four  years  to  be  with  the  colors  and  the 
last  three  years  on  furlough  and  attached  to  the  Army  Reserve — 
contains  the  proviso  that  an  enlisted  man,  at  the  expiration  of  three 
years'  continuous  service  with  his  organization — 
"  upon  his  written  application,  may  be  furloughed  and  transferred 
to  the  Army  Reserve  in  the  discretion  of  the  Secretary  of  War." 

Ileld^  that  the  statute,  which  gives  the  Secretary  of  War  discre- 
tion to  furlough  the  soldier,  does  not  mean  that  the  transfer  must 
necessarily  be  effected  immediately  after  the  expiration  of  the  three 
years'  service,  and  that  if  some  obstacle  intervenes  the  furlough  may 
take  place  as  soon  thereafter  as  practicable  upon  the  removal  of  the 
obstacle. 

Answering  the  questions  specifically: 

{a)  The  Secretary  of  War  may  either  furlough  the  soldier  to  the 
reserve  immediately  after  the  completion  of  the  three  years'  service 
with  his  organization,  remitting  the  unexecuted  part  of  the  forfeit- 
ures imposed  by  sentence  of  court-martial,  or  may  grant  the  sol- 
dier's application  to  be  furloughed  to  the  reserve  to  take  effect  imme- 
diately after  the  forfeitures  have  been  fully  executed. 

{h)  AVhere  the  indebtedness  of  the  soldier  to  the  Government,  not 
including  court-martial  forfeitures,  exceeds  the  amount  due  him  the 
grant  of  the  soldier's  application  to  be  furloughed  to  the  reserve 
should  be  deferred  until  sufficient  pay  accrues  to  satisfy  his  indebted- 
ness to  the  Government. 

(72-530,  J.  A.  G.,  May  15,  1916.) 


CHIEF  MUSICIAlSr:  Power  of  regimental  commander  to  reduce  to  ranks. 

The  question  was  submitted  whether  a  chief  musician  of  Cavalry 
could  be  reduced  to  the  ranks  by  the  regimental  commander. 

Held^  that  such  musicians  obtain  their  grade,  like  other  noncom- 
missioned officers,  by  enlistment  as  private  and  subsequent  appoint- 
ment (act  of  Mar.  2,  1899,  sec.  2,  30  Stat.,  936),  and  it  follows  that 
they  may  be  reduced  to  the  ranks  in  like  manner  as  other  noncommis- 
sioned officers,  viz,  by  sentence  of  court-martial  or  by  order  of  the 
commanding  officer  having  authority  to  appoint  them. 

(6-151.1,  J.  A.  G.,  May  19,  1916.)' 


670       DIGEST  OF  OPINIONS  OF   THE   JUDGE  ADVOCATE   GENERAL. 

CIVILIANS :  Medical  supplies  for,  at  camps  of  instruction. 

The  commanding  officer  of  the  camp  at  Plattsburg,  N.  Y.,  requested 
a  supph^  of  first-aid  packets  and  first-aid  instruction  packets  for  use 
of  civilian  members  of  the  camp. 

Held^  that  in  view  of  the  broad  powers  of  discretion  conferred 
upon  the  Secretary  of  War  by  section  54,  national  defense  act,  in  the 
matter  of  providing  for  military  camps  of  instruction  and  trainhig 
for  civilians,  including  authority  "  to  furnish  at  the  expense  of  the 
United  States  uniforms,  subsistence,  transportation,  and  medical 
supjylies  to  persons  receiving  instruction  at  such  camps,"  the  first-aid 
packets  requested  could  properly  be  furnished  if  regarded  by  the 
Surgeon  General  as  reasonably  necessary  for  the  civilians  in  training 
at  the  camp. 

(80-131,  J.  A.  G.,  June  13,  1916.) 


COMMUTATIOIsr    OP    QUABTERS,    ETC.:    Officers    on    temporary    duty    at 
training  camps. 

In  section  5  of  the  national  defense  act,  approved  June  3,  1916,  re- 
lating to  the  General  Staff  Corps,  it  is  provided — 

"  Not  more  than  one-half  of  all  of  the  officers  detailed  in  said 
corps  shall  at  any  time  be  stationed,  or  assigned  to  or  employed  upon, 
any  duty  in  or  near  the  District  of  Columbia." 

The  question  was  raised  with  reference  to  the  relief  of  certain 
General  Staff  officers  from  duty  in  Washington,  whether  if  they  be 
directed  to  report  at  certain  camps,  like  that  at  Plattsburg,  N.  Y., 
for  temporary  duty  they  could  "  retain  station  in  Washington,  not 
for  duty,  but  for  the  purpose  of  drawing  commutation  of  quarters, 
heat,  and  light." 

Ileld^  that  as  the  law  requires  assignment  of  the  officers,  upon 
the  approval  of  the  act,  to  some  other  station  than  one  in  or  near 
the  District  of  Columbia  they  could  not  retain  station  in  Washington 
for  any  purpose ;  and  that  if  not  assigned  to  some  other  station  than 
the  one  to  which  they  are  temporarily  assigned  for  duty  their  right 
to  receive  commutation  of  quarters,  heat,  and  light  must  depend  on 
such  temporary  assignment. 

(6-210,  J.  A.  G.,  June  1,  1916.) 


DENTAL  COE.PS:  As  to  reorganization  of,  under  national  defense  act. 

Section  10  of  the  national  defense  act,  with  respect  to  the  Dental 
Corps,  is  as  follows: 

"  The  President  is  hereby  authorized  to  appoint  and  commission, 
by  and  with  the  advice  and  consent  of  the  Senate,  dental  surgeons, 
who  are  citizens  of  the  United  States  between  the  ages  of  twenty-one 
and  twenty-seven  years,  at  the  rate  of  one  for  each  one  thousand  en- 
listed men  of  the  line  of  the  Army.  Dental  surgeons  shall  have  the 
rank,  paj'',  and  allowances  of  first  lieutenants  until  they  have  com- 
pleted eight  years'  service.  Dental  surgeons  of  more  than  eight  but 
less  than  twenty-four  years'  service  shall,  subject  to  such  examina- 
tion as  the  President  may  prescribe,  have  the  rank,  pay,  and  allow- 
ances of  captains.     Dental  surgeons  of  more  than  twenty-four  years' 


DIGEST  OF  OPIXIOXS  OF  THE  JUDGE  ADVOCATE  GENERAL.       571 

service  shall,  subject  to  such  examination  as  the  President  may  pre- 
pcribe,  have  the  rank,  pay,  and  allowances  of  major:  Provided^  That 
the  total  number  of  dental  surgeons  with  rank,  pay,  and  allowances 
of  major  shall  not  at  any  time  exceed  fifteen:  And  provided  further^ 
That  all  laws  relating  to  the  examination  of  officers  of  the  Medical 
Corps  for  promotion  shall  be  applicable  to  dental  surgeons." 

By  section  127  it  is  provided  that  "nothing  in  this  act  shall  be  held 
or  construed  so  as  to  discharge  any  officer  frf)m  the  Regular  Army 
or  to  deprive  him  of  the  commission  which  he  now  holds  therein." 
The  provisions  of  the  act  of  March  3,  1911  (3G  Stat.,  1051),  for  the 
organization  of  the  Dental  Corps  are  not  regarded  as  repealed  by 
the  new  act  and  both  statutes  should  therefore  be  construed  together 
and  the  former  act  be  given  force  except  where  it  appears  to  be  modi- 
fied by  the  national  defense  act.  In  respect  to  the  above  provisions 
of  the  new  act,  questions  were  submitted  and  answered  as  follows: 

{a)  May  the  President  issue  commissions  as  dental  surgeons  to 
the  present  acting  dental  surgeons  wdio  are  within  the  designated  age 
limits,  such  commissions  to  be  effective  from  the  date  of  the  approval 
of  the  new  law^?  Ansioer:  Yes.  As  the  number  of  dental  surgeons 
authorized  by  the  new  act  corresponds  to  the  total  number  of  both 
grades  under  the  act  of  March  3,  1911 — that  is,  not  to  "exceed  the 
proportion  of  one  to  each  1,000  enlisted  men  of  the  line  of  the 
Army  "^this  evidences  the  purpose  of  Congress  to  supersede  the 
grade  of  acting  dental  surgeons. 

{h)  In  issuing  and  making  such  appointments,  may  the  President, 
in  his  discretion,  require  preliminary  examination  similar  to  that: 
prescribed  in  section  16  as  preliminary  to  the  appointment  of  present 
veterinarians  in  the  Veterinary  Corps?  Answer:  The  President  may 
require  an  examination  preliminary  to  the  appointment  of  acting 
dental  surgeons  to  the  commissioned  grade  of  dental  surgeons,  in 
view  of  the  provisions  of  the  act  of  March  3,  1911,  which  is  regarded 
as  still  in  force,  declaring  that: 

"Acting  dental  surgeons  who  shall  serve  three  years  in  a  manner 
satisfactory  to  the  Secretary  of  War  shaU  he  eligihle  for  appoint- 
ment as  dental  surgeons^  and,  after  passing  in  a  satisfaetory  manner 
on  examination  lohich  Tnaij  he  prescribed  hy  the  Secretary  of  War^ 
may  be  commissioned  with  the  rank  of  first  lieutenant  in  the  Dental 
Corps  to  fill  the  vacancies  existing  therein." 

(c)  May  acting  dental  surgeons  over  27  years  of  age  be  appointed 
or  commissioned  as  dental  surgeons?  Ansioer:  Yes.  The  act  of 
March  3,  1911,  provided  for  the  eligibility  of  acting  dental  surgeons 
"  for  appointment  as  dental  surgeons "  under  the  conditions  pre- 
scribed therein,  and  prescribed  the  age  limits  for  appointees  as  acting 
dental  surgeons  to  be  "  between  21  and  27  years."  It  was  evidently 
contemplated  that  they,  having  been  appointed  between  the  age 
limits,  should  lie  eligible  under  the  conditions  specified  for  appoint- 
inent  as  dental  surgeons,  although  over  27  years  of  age,  and  this  pro- 
A'ision  should  be  construed  in  connection  with  the  present  statute  so 
that  both  will  have  operation — the  age  limits  prescribed  in  the  act 
of  March  3,  1911.  to  apply  to  the  eligibility  of  appointment  of  exist- 
ing acting  dental  surgeons  as  dental  surgeons  and  the  age  limits 
prescribed  in  the  national  defense  act  to  apply  to  all  other  appoint- 
ments as  dental  surgeons. 


572       DIGEST  OF   OPINIONS   OF   THE   JUDGE  ADVOCATE   GENERAL. 

{(I)  Should  neAV  commissions  be  issued  to  members  of  the  present 
Dental  Corps  who  hold  commissions  under  the  act  of  March  3,  1911, 
Avitli  the  rank  of  first  lieutenant?  Ansiver:  Having  in  view  the  fact 
that  the  provisions  of  the  national  defense  act  with  regard  to  the 
Dental  Corps  are  not  a  complete  organization  of  that  corps  and  do 
not  provide  for  the  repeal  of  the  organization  act  of  March  3,  1911, 
and  that  section  127  declares  that  nothing  in  that  act  shall  deprive 
any  officer  "  of  the  commission  which  he  now  holds,"  this  question 
should  be  answered  in  the  negative. 

{e)  May  service  as  contract  dental  surgeons  under  section  18  of  the 
act  of  February  2,  1901  (31  Stat.,  752-3),  and  service  in  the  Dental 
Corjjs  established  by  the  act  of  March  3,  1911,  whether  in  the  civilian 
grade  of  acting  dental  surgeons  or  in  the  commissioned  grade  of 
dental  surgeons,  be  counted  toward  the  advanced  rank  provided  in 
the  new  law?     Answer:  The  act  of  March  3,  1911,  provides  that — 

"  The  time  served  by  dental  surgeons  as  acting  or  contract  dental 
surgeons  shall  be  reckoned  in  computing  the  increased  service  pay 
of  such  as  are  commissioned  under  this  act;"  while  the  provisions  of 
the  national  defense  act  gives  increase  in  "  rank,  pay,  and  allowances 
according  to  the  length  of  service  as  prescribed  therein."  There  is 
evidently  a  distinction  between  the  "  increased-service  pay  "  author- 
ized by  the  act  of  March  3,  1911,  and  the  increase  in  "  rank,  pay,  and 
allowances  "  authorized  by  the  new  law,  and  it  appears  that  while  the 
service  specified  in  this  connection  may  be  counted  toward  longevity 
pay,  it  can  not  be  "counted  toward  the  advanced  rank  provided  in 
the  new  law,"  but  service  as  dental  surgeon  under  the  act  of  March  3, 
1911,  may  be  counted  for  the  purpose  of  rank,  pay,  and  allowances 
under  the  new  law. 

(6-227.3,  J.  A.  G.,  Jtme  8,  1916.) 


ENLISTED  MEN":  As  to  furloiigh  without  pay. 

A  noncommissioned  officer  of  the  Regular  Army  requested  an 
indefinite  furlough  without  pay  and  allowances  to  enable  him  to 
accept  an  appointment  as  veterinarian  in  an  organization  of  the 
National  Guard  in  the  service  of  the  United  States. 

Held^  that  as  the  pay  of  an  enlisted  man  is  fixed  by  law  his  agree- 
ment to  waive  it  Avould  not  be  binding,  and  that  therefore  the  fur- 
lough requested  for  the  purpose  stated  could  not  be  granted. 

(72-220,  J.  A.  G.,  June  13,  1916.) 


ENLISTED  MEN:  Discharge  by  purchase  and  furlough  to  the  Army  Re- 
serve. 

A  provision  in  section  29  of  the  national  defense  act  approved  June 
3,  1916,  reads  as  follows: 

"  When  an  enlisted  man  is  discharged  by  purchase  while  in  active 
service  he  shall  be  f  urloughed  to  theRegular  Army  Eeserve,  unless, 
in  the  discretion  of  the  Secretary  of  War,  he  is  given  a  final  discharge 
from  the  Army." 

Held,  that  this  provision  is  applicable  to  all  discharges  by  pur- 
chase issued  on  and  after  the  date  of  the  approval  of  the  act,  irre- 
spective of  the  time  when  the  soldier  enlisted. 

(6-310,  J.  A.  G.,  June  7,  1916.) 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       573 

ENLISTED  MEN:  Indebtedness  to  tlie  United  States  standing  from  former 
enlistment. 

The  question  was  presented  whether  an  enlisted  man  is  liable  for 
any  indebtedness  to  the  Governnient  contracted  during  his  preceding 
enlistment. 

Ileld^  that  the  War  Department  is  without  authority  A'oluntarily 
to  waive  an  indebtedness  due  the  United  States;  that  the  discharge 
of  an  enlisted  man  indebted  to  the  United  States  does  not  ijjso  facto 
wipe  out  the  indebtedness,  and  that  it  would  be  the  duty  of  the  de- 
partment to  cause  its  collection  from  pay  accruing  to  him. 

(72-510,  J.  A.  G.,  Apr.  20, 191G.) 


GENERAL  STAFF  CORPS :   Boards  for  recommending  officers  for  detail  to. 

Section  5  of  the  national  defense  act  approved  June  3,  191G,  pro- 
vides, with  reference  to  the  composition  of  boards  required  by  the 
act  to  recommend  officers  for  detail  to  the  General  Staff  Corps,  that — 

"  Neither  the  Chief  of  Staff  nor  more  than  two  other  members  of 
the  General  Staff  Corps,  nor  any  officer  not  a  member  of  said  corps, 
who  shall  have  been  stationed  or  employed  on  any  duty  in  or  near 
the  District  of  Columbia  within  one  year  prior  to  the  date  of  con- 
vening of  any  such  board,  shall  be  detailed  as  a  member  thereof." 

Held^  that  the  service  of  officers  on  a  board  sitting  in  the  District 
of  Columbia  which  was  found  after  the  completion  of  its  report  to 
be  illegal  was  not  service  in  the  District  within  the  prohibition  of 
the  act,  and  that  they  were  not  therefore  by  reason  of  such  service 
ineligible  for  service  on  a  new  board. 

(6-210,  J.  A.  G.,  June  30,  191G.) 


GENERAL  STAFF  CORPS:  Increases  under  national  defense  act. 

With  reference  to  section  5  of  the  national  defense  act,  relating  to 
the  General  Staff  Corps,  questions  were  submitted  and  answered  as 
follows : 

{a)  Does  the  law  with  reference  to  the  General  Staff  go  into  effect 
immediately  upon  the  signing  of  the  bill?  Answer:  The  law  with 
icference  to  the  General  Staff  goes  into  effect  immediately  upon 
signing  the  bill  by  the  President  (3  Ops.  Atty.  Gen.,  82),  but,  as  in 
the  case  of  other  increases  in  the  personnel  of  the  Army,  the  addi- 
tional offices  representing  the  increase  in  the  personnel  of  the  Gen- 
eral Staff  Corps  do  not  become  effective  at  once  but  are  added  in  five 
annual  increments,  the  first  increment  being  added  July  1,  1916,  the 
second  July  1,  1917,  etc.  Unless  conditions  arise  under  which  the 
President  is  authorized  to  organize  the  Army  immediately,  or  so 
much  thereof  as  he  may  deem  necessary,  the  additional  offices  rep- 
resenting the  increase  do  not  come  into  being  until  the  periods  stated 
from  which  the  respective  increments  are  to  rank — that  is,  from  Jul}^ 
1  of  the  year  in  which  the  increment  is  added. 

{h)  AVhat  will  be  the  authorized  strength  of  the  General  Staff  aftei- 
the  bill  is  signed?  Answer:  The  authorized  strength  of  the  General 
Staff'  Corps,  after  the  bill  is  signed,  will  be  that  provided  by  existing 
law,  until  July  1,  1916,  when  the  first  increment  of  the  increase  is 
added. 


574       DIGEST  OF  OriNIOXS  OF  THE  JUDGE  ADVOCATE  GENEEAL. 

(c)  Will  the  law  require  the  officers  of  the  General  Staff  in  excess 
of  the  number  authorized  for  duty  in  Washington  to  be  immediately 
relieved  and  assigned  to  duty  elsewhere?  Answer:  Section  5  of  the 
act  provides  that: 

"Not  more  than  one-half  of  all  the  officers  detailed  in  said  corps 
shall  at  any  time  be  stationed  or  assigned  to  or  employed  upon  any 
duty  in  or'^near  the  District  of  Columbia,  etc." 

Held,  that  this  is  general  law,  which  became  effective  upon  the 
signing  of  the  bill. 

(d)  "Does  the  provision  for  the  details  in  the  General  Staff  create 
vacancies  as  provided  in  section  27  of  the  act  of  February  2,  1901, 
upcm  the  signing  of  the  bill,  or  does  this  part  of  the  bill  become 
effective  July  1,  clue  to  resulting  increase  in  the  officers?  Does  this 
increase  become  effective  at  once,  or  in  five  increments,  as  provided 
for  other  increases?  Answer:  This  provision  requires  that  section 
27  of  the  act  of  February  2,  1901,  "  shall  apply  to  each  position 
vacated  hy  officers  below  the  grade  of  general  officer  detailed  in  the 
General  Sto^  Corps.  It  creates  vacancies  immediately  upon  the 
approval  of  the  act  and  brings  such  vacancies  under  the  operation 
of  section  27,  supra,  but  such  vacancies  can  not  be  regarded  as  within 
the  operation  of  section  21  of  the  act  which  provides  that  the  in- 
creases in  the  commissioned  and  enlisted  personnel  of  the  Army 
shall  be  made  in  five  annual  increments.  I  think  the  provision 
should  be  construed  as  specifically  creating  vacancies  in  the  positions 
vacated  by  the  officers  comprising  the  existing  General  Staff  Corps 
and  providing  for  their  being  filled  under  the  operation  of  section 
27  of  the  act  of  February  2,  1901,  and  as  to  future  increments  to  the 
General  Staff'  Corps,  vacancies  upon  the  detail  of  the  officers  com- 
prising such  increments. 

(6-210,  J.  A.  G.,  May  25,  191G.) 


HEAT  AND  LIGHT  ALLOWANCES:  Officer  sick  in  hospital  when  his  regi- 
ment takes  station  at  another  place. 

An  officer  was  sick  in  hospital  when  his  regiment  left  to  take  sta- 
tion at  another  place.  He  was  unable  to  accompany  the  regiment 
and  after  remaining  in  the  hospital  for  seA'eral  weeks  was  granted 
sick  leave.  His  family  continued  to  occupy  public  quarters  at  the 
same  station,  and  the  question  was  submitted  whether  they  were  en- 
titled to  draw  the  officer's  heat  and  light  allowances. 

Held,  that  the  orders  changing  the  station  of  the  officer's  regiment 
were  necessarily  suspended  as  to  such  officer  until  he  was  able  to 
comply  therewith,  and  that  he  was  entitled  to  have  his  heat  and  light 
allowance  furnished  his  family  under  the  circumstances  stated  until 
the  end  of  his  sick  leave,  which  was  within  the  limits  prescribed  by 
A.  E.  1035. 

(72-315,  J.  A.  G.,  June  23,  1916.) 


INSPECTOR  GENERAL'S  DEPARTMENT:  Composition  of,  under  the  na- 
tional defense  act. 

Section  7  of  the  national  defense  act,  approved  June  3,  1916, 
provides : 

"  The  Inspector  General's  Department  shall  consist  of  one  inspector 
general  with  the  rank  of  brigadier  general;  four  inspectors  general 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       575 

with  the  rank  of  colonel ;  eight  inspectors  general  with  the  rank  of 
lieutenant  colonel;  and  sixteen  inspectors  general  with  the  rank  of 
major." 

ileld^  that  this  provision  does  not  repeal  the  authority  contained 
in  the  act  of  June  23,  1874  (18  Stat.,  244)  to  "detail  officers  of  the 
line,  not  to  exceed  four,  to  act  as  assistant  inspectors  general "  with 
pay  and  allowances  as  prescribed,  which  has  been  regarded  by  the 
department  as  permanent  legislation  and  as  not  having  been  repealed 
by  provisions  similar  to  the  above  section  7  contained  in  the  acts  of 
February  5,  1885  (23  Stat.,  297),  March  2,  1890  (31  Stat.,  701),  and 
Februarv  2,  1901   (31  Stat.  751). 

(6-222,  J.  A.  G.,  June  3,' 1910.) 


MEDICAL  OFFICERS:  Provisions  of  law  governing  examinations  for  pro- 
niotion. 

Section  24  of  the  national  defense  act,  approved  June  3,  191G, 
declares  that — 

"  The  provisions  of  existing  law  requiring  examinations  to.  deter- 
mine fitness  for  promotion  of  officers  of  the  Army  are  hereby  extended 
to  include  promotions  to  all  grades  below  that  of  brigadier  general." 

Under  existing  law  there  are  two  courses  of  action  prescribed  in 
respect  to  medical  officers  who  fail  to  qualify  for  promotion  for  rea- 
sons other  than  physical  disability  incurred  in  line  of  duty — the  act 
of  April  23,  1908  (35  Stat.,  07),  which  applies  to  captains  and  lieu- 
tenants, providing  that  upon  their  failure  to  pass  the  examination 
the  finding  of  the  examining  board  shall  be  passed  upon  by  a  board 
of  review,  and  if  it  be  concurred  in  by  the  board  of  review  the  officer 
shall  be  discharged  with  one  year's  pay;  the  other,  the  act  of  March 
3,  1909  (35  Stat.,  737),  Avhich  applies  in  terms  to  majors,  and  provides 
that  if  such  officer  fails  to  pass  an  examination  for  promotion,  for 
reasons  other  than  physical  disability  incurred  in  line  of  duty,  he 
shall  be  suspended  from  promotion  and  reexamined  after  the  expira- 
tion of  one  year,  and  if  he  then  fails  to  pass  he  shall  be  retired  with- 
out promotion. 

Held,  that  by  the  above-quoted  provision  of  the  national  defense 
act  the  provisions  of  the  act  of  March  3,  1909,  supra,  relating  to  ex- 
amination of  majors  of  the  Medical  Corps  and  the  action  to  be  taken 
in  case  of  failure  to  qualify  for  pi-omotion,  is  extended  to  include 
promotions  of  officers  of  the  INIedical  Corps  above  the  grade  of 
major  and  below  the  grade  of  brigadier  general. 

(64-221.4,  J.  A.  G.,  June  12,  1910.) 


K"ATIOTTAL  GUAUD:  Appointment  of  second  lieutenants — as  to  antedating 
rank. 

The  question  arose  in  connection  with  the  proposed  appointment  of 
tAvo  enlisted  men  of  the  District  of  Columbia  National  Guard  as 
second  lieutenants  whether  they  could  properly  be  given  rank  from 
the  date  when  the  vacancies  occurred. 

Held,  that  the  rule  which  applies  in  the  case  of  promotions  of  offi- 
cers by  seniority,  to  give  them  the  rank  as  from  the  date  the  vacancy 
occurred,  does  not  obtain  in  respect  of  appointments  of  second  lieii- 


576   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEEAL. 

tenants  from  the  ranks,  the  reason  being  that  an  officer  promoted  by 
seniority  mav  be  deemed  to  exercise,  and  in  many  cases  does  actually 
exercise,  the' duties  of  the  higher  grade  from  the  date  the  Tacancy 
occurred,  while  an  officer  appointed  from  the  ranks  can  not  exercise 
the  duties  of  a  second  lieutenant  until  the  appointment  is  made ;  that 
therefore  the  custom  of  dating  rank  of  a  second  lieutenant  appointed 
from  the  ranks  from  the  date  the  appointment  is  made,  rather  than 
from  the  date  the  vacancy  occurred,  would  appear  to  be  sound  in 
principle  and  should  be  adhered  to. 
(82-111,  J.  A.  a,  June  8,  1916.) 


NATIONAL  GUARD:  Discharges  on  account  of  dependent  family. 

Section  29  of  the  national  defense  act,  approved  June  3,  1916,  con- 
tains the  following  provision: 

"  When  by  reason  of  death  or  disability  of  a  member  of  the  family 
of  an  enlisted  man  occurring  after  his  enlistment  members  of  his  fam- 
ily become  dependent  upon  him  for  support,  he  may,  in  the  discretion 
of  the  Secretary  of  AVar,  be  discharged  from  the  service  of  the  United 
States  or  he  fKrloughed  to  the  Regular  Army  Reserve^  upon  due 
proof  being  made  of  such  condition."  ^    .  , 

Ileld^  that  this  provision  as  a  whole  is  inapplicable  to  the  National 
Guard,  in  view  of  the  alternative  of  furloughing  the  soldier  "  to  the 
Regular  Army  Reserve,"  and  that  its  terms  indicate  that  it  was  in- 
tended to  apply  only  to  the  Regular  Army. 

(58-052,  J.  A.  G.,  June  1,  1916.) 


NATIONAL  GUARD :  Status  as  to  enlistment,  under  State  law,  while  in  the 

Federal  service. 

A  member  of  the  National  Guard  was  under  enlistment  for  three 
years  in  active  service  and  for  five  years  in  the  reserve  under  the 
State  law.  Having  been  called  into  the  Federal  service,  the  question 
was  submitted  whether  he  was  entitled  to  his  discharge  from  the 
service  of  the  United  States  at  the  expiration  of  his  three-year  term 
of  active  service  for  which  he  enlisted,  or  whether  he  would  be  com- 
pelled to  continue  in  the  service  of  the  United  States  during  his  re- 
serve period. 

Held.,  that  it  is  not  the  effect  of  the  Federal  law  or  proclamation 
calling  the  militia  into  service  of  the  United  States  to  control  the  term 
of  service  with  the  colors;  that  the  effect  of  the  local  law  being  to 
transfer  the  militiaman  to  and  invest  him  with  the  reserve  status,  he 
could  not  be  kept  on  continuous  active  service  on  and  after  the  ex- 
piration of  the  three-year  period  for  which  he  enlisted  except  upon 
affirmative  action  taken  by  the  State  authorities  under  the  local  law 
to  that  end.  Advised,  however,  that  a  bill  pending  in  Congress  gives 
authority  to  the  War  Department  to  subject  members  of  the  National 
Guard  to  the  draft,  whether  thev  be  on  the  active  or  reserve  list. 
(58-100,  J.  A.  G.,  June  26,  1916.) 


DIGEST  OF  OPIlSriON'S  OF  THE  JUDGE  ADVOCATE  GENERAL.       577 

NATIONAL  GUARD:  Status  of  the  adjutant  general  of  a  State,  Territory, 
or  District. 

The  question  was  presented  "uiiethcr  the  adjutant  general  of  a 
State,  Territory,  or  District  is  an  officer  of  the  National  Guard  within 
the  meaning  of  the  national  defense  act,  approved  June  3,  1916, 
which  provides,  in  section  109,  for  pay  of  certain  commissioned 
officers  of  the  National  Guard,  including  all  staff  officers^^  and  in  sec- 
tion 110,  that  the  participation  in  Federal  appropriations  after  a 
certain  time  shall  be  dependent  upon  the  enactment  of  local  law  pro- 
viding that — 

"  Staff  officers,  including  officers  of  the  Pa}',  Inspection,  Subsist- 
ence, and  Medical  Departments,  hereafter  appointed  shall  have  had 
prcA'ious  military  experience,"  etc. 

And  further  in  section  G6  that — 

"  The  adjutants  general  of  the  States,  Territories,  and  the  District 
of  Columbia  and  the  officers  of  tJi-e  Natiorud  Guard  shall  make  such 
returns  and  reports  to  the  Secretary  of  War,  or  to  such  officers  as  he 
may  designate,  at  such  times  and  in  such  form  as  the  Secretary  of 
War  may  from  time  to  time  prescribe     *     *     *." 

Held,  that  in  providing  for  the  organization  of  the  National  Guard 
as  a  Federal  force  Congress  has  recognized  the  duties  of  the  several 
States,  and  has  required  or  relied  upon  their  cooperation;  that  the 
adjutant  general  is  an  official  whom  the  act  contemplates  the  State 
will  provide  and  maintain  in  the  performance  of  its  duties;  and  that 
it  recognizes  the  adjutant  general  of  a  State  as  a  State  official  only 
and  not  as  an  officer  of  the  National  Guard. 

(58-210,  J.  A.  G.,  June  9,  1916.) 


OFFICERS:  Recommissioning'  of  persons  formerly  in  the  service. 

Section  24  of  the  national-defense  act  contains  the  following  pro- 
vision : 

"  The  President  may  recommission  persons  who  liave  heretofore 
held  commissions  in  the  Regular  Army  and  have  left  the  service  hon- 
orably, after  ascertaining  that  they  are  qualified  for  service  physi- 
cally, morally,  and  as  to  age  and  military  fitness;  such  recommis- 
sioned  officers  shall  take  rank  at  the  foot  of  the  respective  grades 
which  they  held  at  the  time  of  their  separation  from  the  Army." 

Held,  that  this  provision  creates  no  new  office,  and  that  a  former 
officer  can  only  be  recommissioned  thereunder  to  fill  an  existing  va- 
cancy. (64-213.2,  J.  A.  G.,  June  20,  1916.)  Held,  furtJier,  that  this 
provision  relates  exclusively  to  persons  who  are  not  a  part  of  the 
Army  and  does  not  apply  to  officers  on  the  retired  list.  (88-110, 
J.  A.  G.,  May  27,  1916.)  Also  held,  that  one  who  prior  to  the  pas- 
sage of  the  national  defense  act  had  honorably  resigned  from  the 
Medical  Corps  while  a  captain  may,  though  he  be  over  30  years  of 
age,  be  recommissioned  (that  is,  reappointed)  in  said  corps  under  the 
above  provisions  of  section  24  of  that  act,  without  regard  to  the  re- 
quirement of  section  10  thereof  that  persons  hereafter  commisioned 
in  the  Medical  Corps  shall  be  between  the  ages  of  22  and  30  years, 
the  latter  provision,  in  respect  of  age  at  least,  being  ai:>plicable  to 
original  appointments  as  first  lieutenants  in  said  corps. 

(64-213.2,  J.  A.  G.,  Jime  12,  1916.) 

93668°— 17 37 


578       DIGEST  OF  OPINIONS  OF   THE   JUDGE  ADVOCATE   GENERAL. 

OFI'ICERS:  HecomiQissioning  of  persons  formerly  in  the  service. 

A  former  captain  of  the  Army  applied  for  recommission  as  a  cap- 
tain under  section  24:  of  the  national-defense  act,  which  provides — 

"•  The  President  may  recommission  persons  who  have  heretofore 
held  commissions  in  the  Regular  Army  and  have  left  the  service 
honorably,  after  ascertaining  that  they  are  qualified  for  service 
physically,  morally,  and  as  to  age  and  military  fitness;  such  recom- 
missioned  officers  shall  take  rank  at  the  foot  of  the  respective  grades 
■which  they  held  at  the  time  of  their  separation  from  the  Army," 

While  under  a  penitentiary  sentence  of  a  State  court  for  a  felony, 
and  upon  his  application,  he  was  permitted  to  resign.  The  act  of 
January  19,  1911  (36  Stat.,  894),  was  then  in  force,  which  provided — • 

'•'  That  the  President  be,  and  he  is  hereby,  authorized  to  drop  from 
the  rolls  of  the  Army  any  officer  who  is  absent  from  duty  three 
months  without  leave,  or  who  has  been  absent  in  confinement  in  a 
prison  or  penitentiary  for  more  than  three  months  after  final  con- 
viction by  a  civil  court  of  competent  jurisdiction;  and  no  officer  so 
dropped  shall  be  eligible  for  reappointment," 

Held,,  that  the  applicant,  although  his  resignation  as  tendered  and 
accepted  was  in  terms  unconditional,  the  character  of  the  discharge 
was  nevertheless  governed  by  the  actual  conditions  which  at  the.  time 
required  his  expulsion  from  the  Army  without  honor,  and  that  the 
form  of  his  discharge  did  not  render  his  leaving  the  service  honor- 
ablv  within  the  meaning  of  section  24  of  the  national  defense  act. 

(28-214,  J.  A.  G.,  June  22,  1916.) 


PAY  AND  ALliOWAlSrCES:  E.ate  of  pay  of  aviation  meclianician  while  on 
furlough. 

The  act  of  July  18,  1914  (38  Stat.,  514),  relating  to  the  aviation 
section  of  the  Signal  Corps,  provides  that — 

"  Each  aviation  enlisted  man  *  *  *  while  holding  the  rating 
of  aviation  mechanician,  shall  receive  an  increase  of  fifty  per  centum 
in  his  pay." 

Held.,  that  aviation  enlisted  men  holding  the  rating  of  aviation 
mechanician  are  entitled  to  the  increase  of  pav  while  on  furlough. 

(72-241,  J.  A.  G.,  June  23,  1916.) 


PAY  CLEUKS:  Chang-e  of  status  under  the  national  defense  act. 

Section  9  of  the  national  defense  act,  approved  June  3,  1916, 
enumerates  the  officers  who  shall  comprise  the  Quartermaster  Corps, 
and  includes — 

'^  the  pay  clerks  now  in  active  service^  icho  shall  hereafter  have  the 
rank,  pay,  and  allowances  of  a  seconct  lieutenant,  and  the  President 
is  hereby  authorized  to  appoint  and  commission  them,  by  and  with 
the  advice  and  consent  of  the  Senate,  second  lieutenants  in  the 
Quartermaster  Corps,  United  States  Army." 

In  reference  to  this  provision  questions  were  submitted  and  an- 
swered as  follows: 

(«•)  Will  the  status  of  pay  clerks  change  automatical!}^  in  accord- 
ance with  the  above  law;  and  if  so,  on  what  date?  Answer:  The 
legislation  speaks  from  the  date  of  the  approval  of  the  statute — 
June  3,  1916 — automatically  giving  them  the  rank,  pay,  and  allow- 


DIGEST  OF  OPINIONS  OF   THE  JUDGE  ADVOCATE  GENEEAL.       579 

ances  prescribed  therein  as  of  that  date.  They  do  not,  however,  be- 
come commissioned  officers  of  the  Quartermaster  Corps  until  accept- 
ance of  their  commissions  after  confirmation  by  the  Senate. 

{h)  When  their  status  as  to  rank,  pay,  and  allowances  changes, 
does  such  change  also  involve  necessarily  assignment  to  different 
duties  from  those  heretofore  performed  by  them?  jinstuer:  No. 
The  legislation  does  not  contemplate  any  necessarj^  assignment  to 
different  duties  from  those  heretofore  performed  by  these  pay  clerks, 
but  after  becoming  commissioned  officers  they  may  be  charged  with 
additional  duties  and  responsibilities  involved  in  such  change  in  their 
status. 

(6-224,  J.  xV.  G.,  June  13,  1916.) 


POST  EXCHANGE:   Loss   of  funds  throug'li  negligence   of  post   exchange 
officers. 

The  field  safe  at  a  post  exchange  was  robbed  at  night,  resulting  in 
the  loss  of  $127.64  in  cash  belonging  to  the  exclumge.  The  post 
exchange  officer  did  not  take  personal  charge  of  the  cash  accruing 
from  the  preceding  day's  business,  but  left  it  with  the  exchange 
steward,  who  locked  it  in  the  field  safe  "  according  to  custom,"  to  be 
turned  over  to  the  post  exchange  officer  the  next  morning. 

The  post  exchange  regulations  (Par.  8,  G.  O.  No.  176,  War  Dept., 
1009)  provide  that: 

''  The  exchange  officer  is  in  charge  of  the  exchange  and  is  responsi- 
ble for  its  management.  *  *  *  As  custodian  of  funds  belonging 
to  enlisted  men  he  should  attend  to  all  cash  transactions  in  person'' — 
and  this  regulation  has  been  viewed  by  the  War  Department  as  requir- 
ing that  the  post  exchange  officer  ^'■should  at  the  close  of  each  day^ 
husiness  check  up  the  steward's  daily  report  of  cash  and  coupons 
received,  and  after  verification  enter  these  data  in  the  cash  book,  as 
well  as  all  other  transactions  involving  cash  receipts  and  expendi- 
tures, and  deposit  the  cash  on  hand  in  his  safe^  (Par.  1075,  "A 
Guide  for  Inspectors  General,  1911.") 

Held,  that  by  reason  of  his  failure  to  take  personal  charge  of  the 
funds  at  the  end  of  the  day's  business  and  properly  secure  them, 
the  post  exchange  officer  became  responsible  for  the  loss. 

(72-517,  J.  A.  G.,  May  25,  1916.) 


PRIVATE    PROPERTY:    Disposition    of    ammunition    taken    from    private 
citizens  under  martial  law. 

In  connection  with  the  Colorado  strike  troubles  in  1914  Federal 
troops,  under  martial  law,  collected  a  lot  of  miscellaneous  ammuni- 
tion from  citizens.  In  view  of  the  practical  difficulty  of  assorting 
and  returning  such  ammunition  to  the  owners  after  the  cessation  of 
the  disturbances  it  was  proposed  to  sell  all  of  it,  including  that  for 
which  claim  had  been  made,  and  to  deposit  the  proceeds  in  the 
Treasury  of  the  United  States. 

Held,  that  the  owners  of  the  ammunition  were  entitled  to  its  return 
to  them  and  that  it  could  not  be  sold  or  otherwise  disposed  of  except 
in  accordance  with  the  directions  of  the  owners;  provided,  however, 
that  as  to  such  portion  thereof  for  which  no  claim  may  be  made 


580       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

Avitliin  ji  reasonable  time  it  should  be  treated  as  abandoned  property 
in  the  hands  of  the  Government  and  sold  as  such  and  the  proceeds 
deposited  in  the  Treasury  as  miscellaneous  receipts.  As  to  what 
should  be  considered  a  reasonable  time,  it  was  suggested  that  the  local 
statute  of  limitations  in  actions  for  detaining  goods  or  chattels  be 
accepted  and  observed  as  a  reasonable  measure  of  time  within  which 
claims  should  be  submitted. 

(18-451,  J.  A.  G.,  May  24,  1916.) 


PUBLIC  MOITEYS:  Receipts  from  sale  of  worn-out  prison  clothins.  etc. 

At  one  of  the  military  prisons  a  "  prison  improvement  fund  "  was 
maintained  in  part  by  proceeds  from  the  sale  of  \vorn-out  clothing, 
v>hich  had  been  issued  to  prisoners,  and  miscellaneous  junk.  Section 
3G18,  Revised  Statutes,  requires  that  all  proceeds  of  sales  of  old  ma- 
terial, condemned  stores,  supplies,  or  other  public  property  of  any 
kind  shall,  with  certain  exceptions  not  presently  material,  be  de- 
posited and  covered  into  the  Treasury  as  miscellaneous  receipts  and 
not  withdrawn  except  by  authority  of  a  subsequent  appropriation. 

Ileld^  that  the  old  clothing  and  junk  in  question  being  public 
property  of  the  United  States,  the  proceeds  from  their  sale  are  re- 
quired by  Revised  Statutes  3G18  to  be  deposited  in  the  Treasury  as 
miscellaneous  receipts. 

(78-110,  J.  A.  G.,  May  12,  1916.) 


RETIREMENT:  As  to  change  of  officer's  retirement  status. 

An  officer  requested  "  a  change  of  status  from  '  retired  on  own 
application'  to  retirement  for  disability  incident  to  service."  He 
stated  various  facts  as  evidence  of  disability  prior  to  his  retirement, 
indicating  that  had  a  retiring  board  been  convened  he  would  have 
been  retired  for  incapacity  incident  to  the  service. 

Retirement  for  disability  incident  to  service  can  be  effected  only 
through  the  operation  of  a  retiring  board  under  sections  1246-1251, 
Revised  Statutes. 

Ileld^  that  the  retirement  of  an  officer  under  a  particular  statute 
exhausts  the  power  of  the  President  and  the  record  of  executive 
action  can  not  be  revoked  or  modified  so  as  to  make  retirement  relate 
to  another  statute,  even  though  the  case  were  one  to  which  more  than 
one  statute  properly  applied  at  the  time  retirement  was  accomplished ; 
and  further,  that  the  statutes  relating  to  retirement  apply  only  to 
officers  on  the  active  list;  that  there  is  no  authority  for  the  restora- 
tion of  a  retired  officer  to  the  active  list  for  the  purpose  of  being 
again  retired;  and  that,  therefore,  the  request  in  the  instant  case 
could  not  be  granted. 

(88-120,  J.  A.  G.,  June  28,  1916.) 


SIGNAL  CORPS:  Composition  of,  under  the  national  defense  act. 

The  first  paragraph  of  section  13  of  the  recent  national  defense  act 
reads  as  follows: 

"  The  Signal  Corps  shall  consist  of  one  Chief  Signal  Officer,  with 
the  rank  of  brigadier  general;  three  colonels;  eight  lieutenant  colo- 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       581 

nels;  ten  majors;  thirty  captains;  seventy-five  first  lieutenants;  and 
the  aviation  section,  which  shall  consist  of  one  colonel ;  one  lieutenant 
colonel;  eight  majors;  twentj^-four  captains;  and  one  hundred  and 
fov/rteen  prst  lieutenants^  who  shall  be  selected  from  among  officers 
of  the  Army  at  large  of  corresponding  grades  or  from  among  officers 
of  the  grade  below,  exclusive  of  those  serving  by  detail  in  staff  corps 
or  departments,  vjho  are  quaVvfied  as  military  aviators,  and  shall  be 
detailed  to  serve  as  aviation  officers  for  periods  of  four  years  unless 
sooner  relieved ;  and  the  provisions  of  section  twenty-seven  of  the  act 
of  Congress  approved  February  second,  nineteen  hundred  and  one, 
are  hereby  extended  to  apply  to  said  aviation  officers  and  to  vacancies 
created  in  any  arm,  corps, "or  department  of  the  Army  by  the  detail 
of  said  officers  therefrom ;  but  nothing  in  said  act  or  in  any  other  law 
now  in  force  shall  be  held  to  prevent  the  detail  or  redetail  at  any 
time,  to  fill  a  vacancy  among  the  aviation  officers  autliorized  by  this 
act,  of  any  officer  who,  during  prior  service  as  an  aviation  officer  of 
the  aviation  section,  shall  have  become  proficient  in  military  avia- 
tion." 

With  reference  to  the  above  provision,  questions  were  submitted 
and  answered  as  follows: 

(«)  To  what  does  the  word  "who"  following  the  v/ords  "one 
hundred  and  fourteen  first  lieutenants"  relate — to  the  Signal  Corps 
and  aviation  section  combined,  or  only  to  the  latter?  Answer:  It  re- 
fers only  to  the  aviation  section. 

(b)  To  what  class  of  officers  does  the  phrase  "who  are  qualified 
as  military  aviators"  relate?  Answer:  Only  to  the  officers  selected 
from  "  the  grade  below." 

(c)  Can  officers  serving  by  detail  in  staff  corps  or  departments 
who  are  not  qualified  as  military  aviators  be  detailed  in  the  aviation 
section?  Answer:  Officers  serving  by  detail  in  the  staff  corps  or 
departments  who  are  not  qualified  as  military  aviators  may  be  de- 
tailed in  the  aviation  section,  provided  it  be  i/i  the  correspoiullng 
grade,  but  they  may  not  be  detailed  to  the  grade  above. 

(6-228,  J.  A.  G.,  May  27,  1916.) 


TAXATION:  Chauffeur's  license  for  Government  employees. 

A  chauffeur  in  the  employ  of  the  Federal  Government  in  the 
Philippine  Islands  operating  an  automobile  owned  by  the  Govern- 
ment and  used  exclusively  in  the  performance  of  the  business  of  the 
Federal  Government  was  called  upon  by  the  territorial  authorities 
to  pay  a  chauft'eur's  license  tax. 

Held,  that  the  demand  was  illegal,  as  it  is  definitely  settled  that 
the  instrumentalities  of  the  Federal  Government  are  not  subject  to 
taxation  or  the  police  regidations  of  local  governments. 

(90-125,  J.  A.  G.,  June  20,  1916.) 


TRANSPORTATION:   Allowance  to  general  prisoner  on  discharge. 

In  the  case  of  a  general  prisoner  at  the  United  States  Disciplinary 
Barracks  under  sentence  of  dishonorable  discharge,  the  question 
arose  as  to  whether  he  was  entitled  to  be  furnished  transportation 


582       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL, 

upon  his  discharge  to  the  Canal  Zone,  the  place  of  his  last  enlistment. 
The  curl^ent  xVrmy  appropriation  act,  approved  March  4,  1915,  under 
the  heading  "Transportation  of  the  Army  and  its  supplies,"  pro- 
A'ides  for  transportation  of  persons  on  their  discharge  from  the 
United  States  Disciplinary  Barracks,  or  from  any  place  in  which 
they  have  been  held  under  a  sentence  of  dishonorable  discharge  and 
confinem.ent  for  more  than  six  months,  or  from  the  Government 
Hospital  for  the  Insane  after  transfer  thereto  from  such  barracks 
or  place,  "to  their  homes  (or  elsewhere  as  they  may  elect),  provided 
the  cost  in  each  case  shall  not  be  greater  than  to  the  place  of  last 
enlistment." 

Ileld^  that  under  the  rule  that  all  laws  in  'pari  Tnateria  should  be 
construed  together,  the  above  provision  should  be  read  in  connection 
with  the  general  law  on  the  subject  of  transportation  for  discharged 
enlisted  men,  contained  in  the  act  of  August  24,  1912  (37  Stat.,  576), 
b}^  which  the  authority  is  limited  to  furnishing  transportation  to 
points  within  the  continental  limits  of  the  United  States,  and  that 
therefore  the  prisoner  in  question  would  not  be  entitled  upon  his 
discharge  to  transportation  to  any  point  outside  of  the  continental 
limits  of  the  United  States. 

(91-300,  J.  A.  G.,  June  20,  1916.) 


VETEHINAHIANS:    Composition    of   first  board    of    examiners   under   the 
national  defense  act. 

Section  16  of  the  national  defense  act  relating  to  the  appointment 
of  the  present  veterinarians  as  "assistant  veterinarians"  or  "veter- 
inarians "  in  the  new  Veterinaiy  Corps  established  by  that  act,  con- 
tains the  following  provision: 

"  The  Secretary  of  War  shall  from  time  to  time  appoint  boards  of 
examiners  to  conduct  the  veterinary  examinations  hereinbefore  pre- 
scribed, each  of  said  boards  to  consist  of  three  medical  officers  and 
two  veterinarians.^^ 

The  question  arose  as  to  how  the  frsf  veterinary  examining  boards 
shall  be  constituted  prior  to  the  issuing  of  commissions  to  any  per- 
sons in  the  new  Veterinary  Corps,  in  view  of  the  requirement  that 
two  members  of  such  boards  shall  be  "  veterinarians." 

Held,  that  as  the  law  does  not  specifically  require  the  veterinarian 
members  of  the  board  to  have  qualified  under  the  examination  pro- 
vided by  the  national  defense  act,  and  it  would  be  impossible  so  to 
constitute  the  first  board,  the  existing  veterinarians  in  the  service 
should  be  appointed  members  of  the  first  boards  convened  for  the 
required  examinations. 

(6-133,  J.  A.  G.,  June  6, 1916.) 


DECISIONS  0?  THE  COMPTKOLLER  OP  TZE  TSEASUaY. 

(Digests  prepared  in  tlie  office  of  the  Judge  Advocate  General.) 

CLAIMS:  Personal  property  loss  or  damage,  evidence  required  by  account- 
ing officers. 

An  officer  sul)mitted  a  claim  under  the  provisions  of  the  act  of 
March  3,  1885   (23  Stat.,  350),  as  extended  by  the  act  of  March  4, 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       583 

1915  (38  Stat.,  1077),  for  damages  to  personal  baggage  in  transit. 
The  comptroller  affirmed  the  auditor's  disallowance  on  the  ground 
of  lack  of  sufficient  evidence. 

Held,,  that  the  evidence  submitted  to  the  accounting  officers  of  the 
Treasury  in  support  of  a  claim  for  reimbursement  under  the  act  of 
March  3,  1885,  as  extended,  for  personal  baggage  of  an  officer  or  en- 
listed man  of  the  Army  lost  or  damaged  in  changing  station  should 
consist  of  as  complete  a  statement  of  facts  as  possible  relative  to  the 
value  of  the  property  and  the  circumstances  attending  its  loss  or 
damage,  and  not  merely  of  the  conclusions  of  a  board  of  officers  as  to 
such  loss  or  damage,  vhich  conclusions  are  in  no  way  binding  on  the 
accounting  officers;  that  in  the  consideration  of  chiims  of  this  class 
the  opinions  or  conclusions  of  the  board  are  entitled  to  some  weight, 
but  the  accounting  officers  of  the  Treasury  are  not  by  such  opinions 
and  conclusions  relieved  of  the  duty  of  reaching  their  own  conclu- 
sions or  in  any  manner  bound  by  such  opinions  or  conclusions,  and 
that  if  possible  a  clear  and  minutely  detailed  description  of  the  dam- 
age to  each  article  for  which  compensation  is  claimed,  as  well  as  the 
market  value  of  the  article  at  time  of  crating  or  packing  for  ship- 
ment, and  all  facts  obtainable  as  to  when,  where,  and  under  what 
circumstances  the  damage  sustained  should  be  given. 

(Comp.  W.  W.  Warwick,  May  16,  1916.) 


ENLISTED  MEN":   Pay  of  privates,   Medical   Department,   under  the  new 
national  defense  act. 

-  By  section  10  of  the  national  defense  act  it  is  provided  that — 

"The  enlisted  men  of  the  Hospital  Corps  who  are  in  active  serv- 
ice at  the  time  of  the  approval  of  this  act  are  hereby  transferred  to 
the  corresponding  grades  of  the  Medical  Department  established  by 
this  act. 

Section  28  provides: 

"  Hereafter  the  monthly  pay  of  enlisted  men  of  certain  grades  of 
the  Army  created  in  this  act  shall  be  as  follows,  namely:  *  *  * 
private,  Medical  Department,  *  *  *  fifteen  dollars.  Nothing 
herein  contained  shall  operate  to  reduce  the  pay  or  allowances  now 
authorized  by  law  for  anv  grade  of  enlisted  men  of  the  Army." 

//eM,  that  by  reason  of  the  saving  clause  in  section  28,  that  "  noth- 
ing herein  contained  shall  operate  to  reduce  the  pay  or  allowances 
now  authorized  by  law  for  any  grade  of  enlisted  men  of  the  Army," 
privates  of  the  Medical  Department  transferred  to  that  grade  from 
the  Medical  Corps  by  operation  of  section  10  are  entitled  to  be  paid 
at  the  rate  of  $16  per  month  during  the  remainder  of  their  current 
enlistment. 

Ilehl  further,  that  the  pay  of  men  enlisting  in  the  grade  of  pri- 
vate. Medical  Department,  on  or  after  June  3,  1916,  will  be  at  the 
rate  of  $15  per  month,  and  also  that  privates  of  other  branches  of 
the  military  service  whose  pay  is  $15  per  month  who  are  transferred 
to  the  grade  of  private,  Medical  Department,  upon  their  own  appli- 
cation or  with  their  consent,  will  be  paid  upon  the  basis  of  the  new 
rate  of  $15  per  month. 

(Acting  Comp.  C.  M.  Foree,  June  19,  1916.) 


584       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEPJ^L. 

ENLISTED  MEN:  Pay  of  mess  sergeants. 

By  sections  11,  17,  18,  19,  and  20  of  the  national  defense  act  of 
June  3,  1016,  the  grade  of  mess  sergeant  for  organizations  of  the 
Engineer  Corps,  the  Infantry,  the  Cavahy,  and  for  the  Field  and 
Coast  Artillery  of  the  Ami}",  Avas  created.  Pay  was  fixed  by  section 
28,  as  follows: 

"  Hereafter  the  monthly  pay  of  enlisted  men  of  certain  grades  of 
the  Army  created  in  this  act  shall  be  as  follows:  *  *  *  mess  ser- 
geant *  *  *  Corps  of  Engineers  *  *  *  $36 ;  *  *  *  mess  ser- 
geant, Infantry,  Cavalry,  and  Artillerj^  *  *  *  $30;  *  *  * 
Nothing  herein  contained  shall  operate  to  reduce  the  pay  or  allow- 
ances now  aiithorized  by  law  for  any  grade  of  enlisted  men  of  the 
Arm3^" 

Heretofore  enlisted  men  have  served  as  mess  sergeants  by  detail 
under  paragraph  1346,  A.  R.,  1913,  and  were  paid  extra  compensa- 
tion under  the  act  of  May  11,  1908  (35  Stat,  159),  which  provided 
that  mess  sergeants  shall  receive  $6  per  month  in  addition  to  their 

pay- 

Ueld.,  that  the  act  of  June  3.  1916,  created  the  grade  of  mess  ser- 
geant for  certain  arms  of  the  service  only ;  that  for  other  arms  of  the 
service  mess  sergeants  must  be  provided  as  heretofore  by  detail ;  that 
the  men  holding  the  grade  of  mess  sergeant  under  the  new  act  are 
entitled  only  to  the  pay  established  for  that  gTacle,  namely,  $36  or 
$30  per  month,  according  to  the  arm  of  the  service  in  which  serving, 
and  that  men  detailed  as  mess  sergeants  in  the  arms  of  the  service 
for  wliich  the  grade  of  mess  sergeant  is  not  provided  are  entitled 
to  the  pay  of  the  grades  actually  held  by  them  plus  $6  per  month,  as 
provided/  in  the  act  of  May  11,  1908 ;  and  further,  in  answer  to 
specific  questions, 

Held.,  that — 

(«)  The  base  or  initial  pay  of  the  grade  of  mess  sergeant.  Corps 
of  Engineers,  is  $36  per  month,  and  no  more. 

(&)  The  base  or  initial  pay  of  the  grade  of  mess  sergeant  in  the 
Infantry,  Cavalry,  and  Artillery  is  $30  per  month,  and  no  more. 

(f)  The  continuous-service  pay  of  persons  appointed  to  the  grade 
of  mess  sergeant  sliould  be  computed  on  the  basis  of  the  rates  men- 
tioned in  the  answers  to  questions  {a)  and  (6). 

{d)  The  arms  of  the  service  for  which  the  act  of  June  3,  1916, 
makes  provision  for  mess  sergeants  are  not  entitled  to  have  addi- 
tional mess  sergeants  assigned  or  detailed  thereto.  Such  provision 
is  complete  as  to  such  organizations. 

(Comp.  W.  W.  Warwick,  June  30,  1916.) 


LEAVE  OF  ABSENCE :  Officers  and  employees  of  the  Government  who  are 
members  of  the  National  Guard  called  into  the  service  of  the  United 
States. 

Section  80  of  the  national  defense  act,  approved  June  3,  1916,  reads 
as  follows — 

'■''Leaves  of  ccbsence  for  certain  Governm£nt  e/mployees. — All  officers 
and  employees  of  the  United  States  and  of  the  District  of  Columbia 
who  shall  be  members  pi  the  National  Guard  shall  be  entitled  to 
leave  of  absence  from  their  respective  duties,  without  loss  of  pay, 
time,  or  efficiency  rating,  on  all  days  during  which  they  shall  be 


DIGEST  OP  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEEAL.       585 

engaged   in   field   or  coast-defense   training  ordered   or   authorized 
under  the  provisions  of  this  act." 

With  reference  to  this  provision,  the  following  questions  were 
submitted : 

(1)  "Can  employees  of  the  department  who  are  members  of  the 
National  Guard  and  have  been  called  out  by  order  of  the  President, 
be  paid  their  salaries  as  emplo3'ees  of  the  department  for  such  time 
as  they  remain  in  camp  and  are  not  drafted  into  the  active  military 
service  of  the  Government?  " 

(2)  "  Can  any  such  employees  be  borne  on  the  rolls  of  the  depart- 
ment in  a  pay  status  after  they  have  been  drafted  into  active  military 
service  of  the  Government?  " 

(3)  "  Can  employees,  where  they  are  paid  from  lump  fund  appro- 
priations, be  carried  on  the  rolls  of  the  Treasury  Department  in  a 
non-pay  status  after  they  have  been  drafted  into  the  active  military 
service  of  the  Government  ?  " 

(4)  "  Does  the  provision  of  this  section  take  effect  on  date  of  its 
approval  or  on  July  1,  1916?  " 

Ileld,  in  answer  to  questions  (1)  and  (2),  that  the  leave  author- 
ized in  favor  of  officers  and  employees  who  are  members  of  the 
National  Guard  being  only  for  the  time  while  they  are  "  engaged  in 
field  or  coast-defense  training"  ordered  or  authorized  under  the 
provisions  of  that  act,  it  is  not  available  to  such  officers  and  em- 
ployees when  called  into  the  service  of  the  United  States  bj^  the 
President.  Advised,  however,  that  while  the  employees  referred  to 
are  not  entitled  to  military  leave  under  the  said  provision,  there 
appears  to  be  no  reason  why  they  should  not  be  paid  their  regular 
salaries  as  officers  or  employees  for  such  period  prior  to  their  actual 
muster  into  the  service  as  would  be  covered  by  annual  leave  granted 
to  them  in  accordance  with  law,  and  that  even  if  actually  mustered 
into  the  service  of  the  United  States,  enlisted  men  may  continue  to 
receive  pay  as  officers  or  employees  until  the  expiration  of  the  leave 
granted,  provided  the  combined  pay  of  the  military  and  civil  posi- 
tions does  not  exceed  $2,000  per  annum.  If  it  does  exceed  $2,000, 
pajnnent  of  any  compensation  as  a  civilian  offi-cer  or  employee  would 
be  prohibited  under  the  provisions  of  section  6  of  the  act  of  May  10, 
1916  (Pub.  No.  73).  This  applies  to  men  called  forth  under  the  pro- 
visions of  section  4  of  the  act  of  January  21,  1903,  as  amended,  as 
well  as  those  drafted  into  the  military  service  under  the  provisions 
of  section  111  of  the  act  of  June  3,  1916. 

Held,  that  question  (3)  being  purely  administrative  and  not  in- 
volving any  payment  to  be  made,  the  comptroller  was  without  juris- 
diction to  decide  it. 

Held,  as  to  question  (4),  that  the  section  referred  to  became  ef- 
fective June  3,  1916,  the  date  of  approval. 

(Comp.  W.  W.  Warwick,  June  28,  1916.) 


PAY  AND  ALLOWANCES:  Foreign  service  pay  for  trips  into  Mexico. 

In  the  case  of  certain  officers  and  enlisted  men  connected  with  the 
punitive  expedition  into  Mexico  who  had  temporary  station  at  O)- 
lumbus,  N.  Mex.,  and  made  trips  into  Mexico,  held,  that  they  were  en- 
titled to  foreign  service  pay  for  the  time  served  in  Mexico  on  the  trips. 

(Comp.  W.  W.  Warwick,  June  26,  1916.) 


586       DIGEST  OF  OPINIONS  OF   THE   JUDGE  ADVOCATE   GENEKAL. 

PAY  AND  ALLOWANCES :   Persons  drawing  two  salaries. 

By  section  6  of  the  legislative,  etc.,  appropriation  act  of  May  10, 
191G,  it  is  provided  as  follows: 

"  That  unless  otherwise  specially  authorized  by  law  no  money  ap- 
propriated by  this  or  any  other  act  shall  be  available  for  payment 
to  any  person  receiving  more  than  one  salary  when  the  combined 
amount  of  said  salaries  exceeds  the  sum  of  $2,000  per  annum,  l:)ut 
this  shall  not  apply  to  retired  officers  of  the  Army,  Xavy,  or  Marine 
Corps  whenever  they  may  be  appointed  or  elected  to  public  office  or 
whenever  the  President  shall  appoint  them  to  office  by  and  with  the 
advice  and  consent  of  the  Senate  or  to  officers  and  enlisted  men  of  the 
Organized  Militia  and  Naval  Militia  in  the  several  States,  Terri- 
tories, and  the  District  of  Columbia." 

Held^  that  in  the  case  of  a  retired  enlisted  man  of  the  Army  his 
pay  as  such  is  not  salary  within  the  meaning  of  the  above  statute, 
also  that  a  pension  is  not  a  salary  within  its  inhibition. 

(Comp.  W.  W.  Warwick,  June  3,  191G.) 


TRANSPORTATION:  Apportionment  of  charges  in  shipment  of  excess  bag- 
gage. 

In  the  shipment  of  an  officer's  change  of  station  effects,  there  was 
included  in  the  car  with  the  household  goods  one  of  the  officer's 
mounts  shipped  at  public  expense.  The  baggage  weighed  6,007 
pounds.  The  horse  weighed  1,100  pounds,  but  was  charged  for  on 
the  basis  of  5,000  pounds  as  provided  by  the  official  classification. 
The  rate  on  the  basis  of  less  than  carload  was  35  cents  per  hundred- 
weight for  the  11,007  pounds  charged  for.  The  carload  rate  being 
30  cents  per  hundredweight  for  a  minimum  of  12,000  pounds,  the 
latter  was  accepted  as  being  in  the  Government's  favor  and  there 
being  chargeable  against  the  officer  the  cost  on  3,509  pounds  of  excess 
baggage,  the  question  Avas  presented  as  to  the  proper  basis  for  deter- 
mining the  apportionment. 

Held,  that  "•  the  question  for  determination  is  whether  in  appor- 
tioning the  cost  of  the  shipment  between  the  officer  and  the  Govern- 
ment the  weight  of  the  horse  is  to  be  considered  as  5,000  pounds  con- 
structive weight  or  1,100  pounds  actual  weight.  It  must  be  borne  in 
mind  that  5,000  pounds  is  not  the  weight  of  the  horse,  but  is  merely 
stated  as  the  basis  for  determining  the  charge  for  its  transportation 
when  the  less-than-carload  rate  is  applicable.  This  constructive  basis 
for  determining  the  charge  for  transportation  does  not  affect  the 
actual  weight,  which  is  clearly  distinguishable  therefrom.  The 
weight  of  the  horse  being  1,100  pounds  and  the  other  portion  of  the 
shipment  6,007  pounds,  makes  a  total  weight  of  7,107  pounds,  for 
which  the  cost  is  on  the  basis  of  a  carload  of  12,000  pounds  as  the 
maxmium  charge  for  the  shipment,  Avhich  would  cost  more  if  less- 
than-carload  rates  were  applied.  The  officer  should  pay  such  propor- 
tion of  this  $36  as  his  excess  of  3,509  pounds  bears  to  the  total  weight 
of  7,107  pounds,  for  Avhich  the  said  charge  is  made." 

(Comp.  W.  W.  Warwick,  May  19,  1916.) 


TRAVEL  ALLOWANCES:  Enlisted  men  on  discharge. 

Section  126  of  the  national  defense  act,  appro A^ed  June  3,  1916, 
provides : 


DIGEST  OF  OPIXTONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       587 

"  On  and  after  July  first,  nineteen  hundred  and  sixteen,  an  enlisted 
man  when  discharged  from  the  service,  except  by  way  of  punishment 
for  an  offense,  shall  receive  3^  cents  per  mile  from  the  place  of  liis 
discharge  to  the  place  of  his  acceptance  for  enlistment,  enrolhnent, 
or  original  muster  into  the  service,  at  his  option:  Provided^  That  for 
sea  travel  on  discharge  transportation  and  subsistence  only  shall  be 
furnished  to  enlisted  men." 

By  section  128  it  is  provided  "  that  all  laws  or  parts  of  law^s  in  so 
far  as  they  are  inconsistent  with  this  act  are  hereby  repealed." 

In  view^  of  these  provisions  of  the  national  defense  act  the  follow- 
ing questions  were  submitted  for  decision : 

(a)  Will  the  travel  pay  of  enlisted  men  on  discharge  on  and  after 
July  1,  191G,  be  governed  by  the  acts  of  June  12,  1906,  and  June  3, 
1916? 

(6)  Does  the  act  of  June  3,  1916,  confer  upon  an  enlisted  man  on 
discharge  a  right  to  travel  pay  to  a  place  other  than  the  place  of  his 
acceptance  for  enlistment? 

Held,  that  the  act  of  August  24,  1912  (37  Stat..  57.")),  providing 
for  transportation  and  subsistence  in  kind  for  enlisted  men  on  their 
discharge,  or,  in  lieu  thereof,  2  cents  a  mile,  at  the  election  of  the 
soldier,  was  repealed  by  the  act  of  June  3,  1916,  and  that  on  and 
after  July  1,  191G,  the  jniyment  of  travel  pay  to  enlisted  men  of  the 
Armv  on  discharge  will  be  governed  by  the  acts  of  June  12.  1906 
(34  Stat.,  247),  and  June  3,  li)16.  The  act  of  June  12,  1906,  referred 
to  provides : 

"  For  the  purpose  of  determining  allowances  for  all  travel  under 
orders,  or  for  officers  and  enlisted  men  on  discharge,  travel  in  the 
Philippine  Archipelago,  the  Hawaiian  Archipelago,  the  home  waters 
of  the  United  States,  and  between  the  United  States  and  Alaska  shall 
not  be  regarded  as  sea  travel  and  shall  be  paid  for  at  rates  established 
by  law  for  land  travel  within  the  boundaries  of  the  Ignited  States." 

Question  («)  accordingly  answered  in  the  affirmative. 

Held,  as  to  question  (&)  that  the  language  "at  his  option"  in  sec- 
tion 126  of  the  national  defense  act  has  operation  only  with  reference 
to  the  preceding  words  "  enrollment "  or  "  original  muster  into  the 
service";  that  as  these  terms  are  not  properly  applicable  to  enlisted 
men  of  the  Regular  Army,  such  enlisted  men  on  discharge  are  en- 
titled to  travel  allovrances  only  to  the  place  of  their  accejitance  for 
enlistment,  i.e.,  the  place  of  initial  acceptance,  it  being  the  purpose 
of  the  act  to  return  a  man  to  the  place  from  wdiich  he  was  taken  by 
the  Government.  As  to  enlisted  men  of  volunteer  or  militia  organiza- 
tions to  which  the  terms  "  enrollment "  or  "  muster  into  the  service  " 
may  apply,  they  may  exercise  an  option.  If  a  man  enters  the  military 
service  as  a  part  of  a  recognized  organization  which  has  been  enrolled 
for  the  purpose  of  becoming  a  part  of  the  Army,  and  such  organiza- 
tion is  mustered  into  the  service  at  a  different  place  from  that  where 
the  members  were  enrolled,  he  may,  upon  discharge  or  muster  out,  be 
allowed  travel  to  the  place  of  his  enrollment  or  to  the  place  of  his 
muster  in,  as  he  may  elect,  or,  in  the  language  of  the  statute  "at  his 
option."  Answering  question  (Z>)  specifically,  an  enlisted  man  of  the 
Regular  Army  is  entitled  to  travel  pa}'  only  to  the  place  of  his  accept- 
ance for  enlistment. 

(Comp.  AV.  W.  Warwick,  June  26,  1916.) 


BULLETIN  28. 

BuLLETix  1  WAE  DEPAETMENT, 

No.  28.     J  Washingto:^^^  August  18,  1916. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  montli  of  July,  1916  (one  opinion  printed  in 
full),  and  of  certain  decisions  of  the  Comptroller  of  the  Treasury 
and  of  a  court,  is  published  for  the  information  of  the  service  in 
general. 

[2255370  I^— A.  G.  O.] 

By  order  of  the  Secretary  op  War  : 

H.  L.  SCOTT, 

Major  General,  Chief  of  Staff. 
Official  : 

H.  P.  McCain, 

T7ie  Ad  jut  ant .  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GESTEHAL. 

July  29,  1916. 

MET.TORAIfDTJM  for  tlie  Secretary  of  War. 

Subject:  Status  of  members  of  the  National  Guard  under  the  call 
for  Federal  service. 

1.  The  views  of  this  office  are  desired  with  respect  to  the  questions 
raised  in  the  accompanying  letter  by  the  Hon.  J.  Hampton  Moore, 
M.  C.,  with  respect  to  the  status  of  members  of  the  National  Guard 
now  in  the  service  of  the  United  States.  The  questions  submitted  by 
Mr.  Moore  are  as  follows: 

(a)  "Is  the  National  Guard,  as  at  present  mustered  in  by  officers 
of  the  Regular  Army  under  the  oath  required,  by  the  national  defense 
a.ct  (the  Hay  bill),  in  the  jurisdiction  of  the  States,  subject  to  orders 
from  the  governors,  or  is  it  noAV  a  part  of  the  Regular  Army  of  the 
United  States  in  the  pay  of  the  United  States  Government  and  sub- 
ject to  the  Regular  Army  term  of  service?  An  answer  to  this  in- 
quiry might  include  the  further  question  as  to  the  pensionable  status 
of  members  of  the  National  Guard  as  now  sworn  in  for  service  along 
the  Mexican  border. 

(h)  "If  the  National  Guard  as  at  present  in  service  along  the 
IMexican  border  has  not  been  drafted  under  existing  law,  including 
the  Dick  Act  and  the  national  defense  act,  it  is  available  for  service 
under  the  Constitution  beyond  the  borders  of  the  United  States  ?  An 
answer  to  this  question  may  include  the  statement  of  the  eifect  of  the 
resolution  of  Congress  declaring  an  emergency  to  exist." 

2.  In  answering  these  questions  the  temi  "  Organized  Militia " 
will  be  applied  to  the  militia  organized  under  the  act  of  January 
21,  1903,  known  as  the  "Dick  bill"  (32  Stat,  775),  as  amended, 
and  the  term  "  National  Guard  "  will  be  applied  to  the  members  of 

588 


DIGEST  OF  OPINION'S  OF   THE  JUDGE  ADVOCATE  GENERAL.       589 

the  Organized  Militia  who  have  qualified  under  the  national  defense 
act  of  June  3,  1916,  by  subscribing  the  oath  and  enlistment  contract 
as  provided  in  sections  70  and  78  of  that  act. 

3.  The  Organized  Militia  of  the  States  of  Arizona,  New  Mexico, 
and  Texas  have  been  mustered  into  the  service  under  the  call  of  May 
9,  1916,  and  the  Organized  Militia  and  National  Guard  of  the  other 
States  are  in  the  service  under  the  call  issued  by  the  President  June 
18,  1916,  both  calls  being  for  the  purpose  of  protecting  the  United 
States  against  aggression  from  Mexico. 

4.  The  questions  submitted  will  be  answered  first  with  respect  to 
the  Organized  Militia  of  the  States  of  Arizona,  New  Mexico,  and 
Texas.  These  were  mustered  into  the  service  of  the  United  States 
under  section  7  of  the  Dick  bill,  the  officers  and  enlisted  men  taking 
in  connection  with  the  said  muster  the  oath  prescribed  by  the  muster- 
in  regulations  promulgated  under  that  law.  Their  status  is  that  of 
militia  called  into  the  service  of  the  United  States  for  one  of  the 
purposes  specified  in  the  Constitution,  that  is,  to  protect  the  United 
States  against  invasion.  While  in  such  service,  they  are  subject  to 
the  laws  and  regulations  governing  the  Eegular  Army,  so  far  as 
applicable  to  their  temporary  status,  and  are  subject  only  to  the 
orders  of  the  President.  They  are  not,  while  in  such  service,  under 
the  jurisdiction  of  the  -States,  nor  are  they  subject  to  the  orders  of 
the  governors,  whose  authority  over  them  for  the  time  being  is  sus- 
pended, except  only  with  respect  to  the  appointment  of  officers.  They 
are  not  a  part  of  the  Regular  Army  of  the  United  States,  nor  are 
they  subject  to  the  Eegular  Army  term  of  service.  They  are  in  the 
service  as  militia  called  forth  to  meet  the  exigency  for  which  the  call 
was  issued.  While  in  the  service  they  are,  of  course,  in  the  pay  of 
the  United  States  Government  and  are  entitled  to  the  same  pay  and 
allowances  as  the  regular  troops.  With  regard  to  their  pensionable 
status,  section  22  of  the  Dick  bill  gives  them  the  benefit  of  the  pen- 
sion laws  for  any  disability  incurred  in  the  service  and,  in  case  of 
death,  confers  on  the  widow  or  children  of  the  deceased  all  the  bene- 
fits of  such  pension  laws.  Under  the  decision  of  the  comptroller  of 
July  20,  191G,  the  widow  or  beneficiary  of  a  member  of  the  Organized 
Militia  dying  in  the  service,  in  line  of  duty  and  not  as  the  result  of 
his  own  misconduct,  is  entitled  to  the  six  months'  gratuity  pay,  the 
same  as  in  the  case  of  officers  or  soldiers  of  the  Regular  Army. 

5.  Answering  the  questions  submitted  with  respect  to  the  Organ- 
ized Militia  and  National  Guard  who  are  in  the  service  under  the 
call  of  June  18,  1916,  it  should  be  observed  that  shortly  after  the 
passage  of  the  national  defense  act  of  June  3,  1916,  the  Organized 
Militia  of  the  several  States  began  to  transform  themselves  into  the 
National  Guard  of  the  new  national  defense  act.  The  call  of  June 
18,  1916,  found  this  process  of  transformation  going  on,  and  it  was 
necessary,  therefore,  for  that  call  to  em.brace  both  the  Organized 
Militia  and  the  National  Guard,  if  it  were  to  be  eifective  to  call  into 
the  service  of  the  United  States  all  of  the  militia  forces,  and  it  was 
so  drafted. 

6.  With  respect  to  those  organizations  of  the  Organized  Militia 
that  had  transformed  themselves,  prior  to  June  18,  1916,  into  the 
National  Guard  under  said  act,  no  muster  in  was  necessary,  as  it 
was  the  effect  of  the  call  to  place  them  in  the  service  of  the  United 
States  from  the  date  they  were  required  by  the  terms  of  the  call  to 


590       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

respond  thereto  (sec.  101,  national  defense  act).  The  muster-in  rolls 
of  the  several  organizations  are  on  file  in  the  War  Department,  but 
this  office  has  not  had  an  opportunity  to  give  them  any  detailed  ex- 
amination. It  is  understood,  however,  that  pursuant  to  instructions 
the  members  of  the  Organized  Militia  who  had  not  qualified  under 
the  national  defense  act  were  required  to  be  mustered  in,  taking  the 
prescribed  muster-in  oath ;  but  as  to  those  who  had  so  qualified,  their 
names  Avere  entered  upon  the  muster  rolls  with  a  notation  to  the  effect 
that  they  had  already  taken  the  oath  prescribed  in  sections  70  and  73 
of  the  national  defense  act. 

7.  There  are,  therefore,  in  the  service  of  the  United  States  under 
the  call  of  June  18,  191G,  two  classes  of  militia — one  the  militia  or- 
ganized under  the  Dick  bill  and  the  other  the  National  Guard  as 
organized  under  the  national  defense  act.  With  respect  to  those  who 
have  not  qualified  under  the  national  defense  act,  their  status  is 
identical  with  that  of  the  Organized  Militia  of  the  States  of  Arizona, 
New  Mexico,  and  Texas,  which  is  discussed  above.  The  status  of 
those  who  have  qualified  under  the  national  defense  act  is  that  of 
National  Guard  "  called  as  such  into  the  service  of  the  United  States  " 
(sec.  101,  national  defense  act),  and  they  are,  while  in  such  service, 
"subject  to  the  lavrs  and  regulations  governing  the  Eegular  Army," 
so  far  as  applicable  to  their  temporary  status,  and  are  subject  only 
to  the  orders  of  the  President,  They  are  not,  while  in  such  service, 
under  the  judisdiction  of  the  State,  nor  are  they  subject  to  the 
orders  of  tlie  governor,  Avliose  authority  over  them  for  the  time 
being  is  suspended,  except  only  w^ith  resi^ect  to  the  appointment 
of  officers  within  the  classes  specified  in  the  national  defense  act 
of  June  3,  1916.  They  are  not  a  part  of  the  Regular  Army  of  the 
United  States,  nor  are  they  subject  to  the  Regular  Army  term  of  serv- 
ice. Like  the  Organized  Militia,  whose  status  is  discussed  above, 
their  status  in  the  service  under  the  call  is  that  of  militia  called  into 
the  service  of  the  United  States  for  one  of  the  purposes  specified  in 
the  Constitution — that  is,  to  protect  the  United  States  against  in- 
vasion. They  are,  of  course,  in  the  pay  of  the  United  States  Gov- 
ernment and  are  entitled  Avhile  in  the  service  to  the  same  pay  and 
allowances  as  regular  troops.  In  fact,  both  classes  of  troops,  wdiile 
in  the  service  of  the  United  States,  are  subject  to  the  laws  and  regu- 
lations governing  the  Regular  Army,  so  far  as  applicable  to  their 
temporary  status,  and  subject  only  to  the  orders  of  the  President. 
Neither  class  of  troops,  while  in  such  service,  is  under  the  jurisdiction 
of  a  State  or  subject  to  the  orders  of  a  governor,  whose  only  authority 
w^ith  respect  to  them  is,  as  above  stated,  to  appoint  officers  to  any 
vacancies  which  may  occur.  Both  classes  of  the  militia  are  entitled 
to  pensions  for  disabilities  incurred  during  their  period  of  service, 
under  the  same  conditions  as  are  regular  troops;  and  their  bene- 
ficiaries are  also  entitled,  under  the  decision  of  the  comptroller  of 
July  20,  1916,  to  the  six  months'  gratnity  pay  in  the  case  of  their 
death  while  in  the  service  from  w^ounds  or  disease  "  not  the  result  of 
their  own  misconduct." 

8.  Much  of  the  misconception  that  has  arisen  regarding  the  status 
of  the  National  Guard  in  service  under  the  call  of  June  18,  1916, 
appears  to  rest  on  the  assumption  that  it  is  the  effect  of  the  new 
oath  and  enlistment  contract,  and  the  call  of  that  date,  to  make 


DIGEST  OF  OPINIOISrS  OF  THE  JUDGE  ADVOCATE  GEXEEAL,       591 

the  National  Guard  available  for  any  service  for  which  the  Eegular 
Army  may  be  used  during  the  period  of  service  under  the  call.  But 
that  Congress  did  not  so  intend  is  evident  from  the  fact  that  the  act 
of  June  3,  1910,  contains  a  jirovision  (sec.  101)  applicable  to  the  Na- 
tional Guard  "  when  called  as  such  into  the  service  of  the  United 
States"  and  a  distinct  provision  (sec.  Ill)  for  drafting  them  into  the 
Federal  service,  dpplicable  only  "-'  when  Congi-ess  shall  have  author- 
ized the  use  of  the  armed  land  forces  of  the  United  States,  for  any 
purpose  requiring  the  use  of  troops  in  excess  of  those  of  the  Ecgular 
Army."  As  to  persons  so  drafted,  it  is  distinctl.v  provided  that  they 
"shall,  from  the  date  of  their  draft,  stand  discharged  from  the 
militia,  and  shall  from  said  date  be  subject  to  such  lavvs  and  regula- 
tions for  the  government  of  the  Army  of  the  United  States  as  may 
be  applicable  to  members  of  the  Volunteer  Army  *  *  *  ."  It  is 
clear,  I  think,  that  the  national  defense  act  contemplates  that  the 
National  Guard  shall  be  available  for  service,  either  as  National 
Guard  called  into  the  service  of  the  United  States  as  sncli  for  the 
three  constitutional  purposes  or,  when  specially  authorized  by  Con- 
gress, as  a  national  force  sup]">lementing  the  Regular  Army  and  avail- 
able for  any  service  for  which  regular  troops  may  be  used.  In  other 
words,  the  national  defense  act  gives  the  Government  the  right,  in 
return  for  the  expenditure  for  pay,  training,  and  equipment  of  the 
National  Guard,  to  draft  them  into  the  Federal  service  to  supple- 
ment the  Regular  Army,  but  this  right  can  be  exercised  only  when 
Congress  shall  liaA'e  authorized  its  exercise,  as  has  been  done  in  the 
joint  resolution  of  July  1,  1916. 

9.  With  regard  to  the  effect  of  the  declaration  in  the  joint  resolu- 
tion of  July  1,  1916,  that  an  emergency  exists,  I  think  there  can  be 
no  question  but  that  this  declaration  serves  as  the  reason  for  con- 
ferring the  authority  to  make  the  draft  and  also  as  a  limitation  upon 
the  authority  vrith  regard  to  the  term  of  servvice  under  the  draft. 
It  is  provided  therein  that  the  draft  shall  be  "/or  the  period  of  the 
emergency^  not  exceeding  three  years,  unless  sooner  discharged." 
The  resolution  confers  a  discretion  on  the  President  to  issue  the  draft 
or  not,  as  the  exigencies  of  the  situation  may  require. 

E.  H.  Crowder, 
Judge  Advocate  General. 

AVIATION  SEBVICE:  Increase  in  personnel. 

Anticipating  a  possible  shortage  of  flyers  to  meet  the  emergency  on 
the  Mexican  border,  the  Chief  Signal  Officer  submitted  the  following 
questions,  to  which  are  subjoined  the  answers  given: 

(a)  May  qualified  fliers  from  the  militia  or  from  civil  life  be 
appointed  and  commissioned  reserve  officers  and  assigned  as  reserve 
officers  to  the  aviation  section  of  the  Signal  Corps?  Ansv:er:  Sec- 
tion 37  of  the  national  defense  act  authorizes  the  creation  of  an 
Officers'  Reserve  Corps  to  include,  inter  alia,  "sections  corresponding 
to  the  various  arms,  staff  corps,  and  departments  of  the  Regular 
Army."  Qualified  fliers  from  the  militia  or  from  civil  life  may  be 
appointed  and  commissioned  as  reserve  officers  in  the  Officers'  Re- 
serve Corps,  and  in  time  of  "  actual  or  threatened  hostilities  "  they 
may  be  assigned  to  duty  with  the  aviation  section  of  the  Signal 
Corps,  as  authorized  by  section  38  of  that  act. 


592       DIGEST  OF  OPINIONS  OF  THE  JUIK5E  ADVOCATE  GENEEAL. 

(b)  "What  number  of  reserve  officers  may  be  assigned  to  the  avia- 
tion section  of  the  Signal  Corps  on  July  1?  Aiwiver:  The  number 
depends  on  the  number  of  divisions  organized  and  on  the  number 
of  regular  officers  and  aviators  available  for  duty  vith  the  aero 
squadrons  authorized  for  the  divisions  ^vhich  may  be  organized. 

(c)  May  fliers  be  appointed  "aviators''  and  be  subsequently  ap- 
pointed and  commissioned  in  the  Officers'  Reserve  Corps?  Ansiver: 
Section  13  of  the  national  defense  act  provides  for  the  appointment 
and  commissioning  of  civilians  to  the  grade  of  aviator  created  by 
said  act,  with  the  base  pay  of  $150  per  month  and  ^yith  the  allow- 
ances "  of  a  master  signal  electrician  and  the  same  percentage  of 
increase  in  pay  for  length  of  service  as  is  allowed  to  a  master  signal 
electrician."  The  statute  broadly  authorizes  the  commissioning  of 
tlie  number  required  to  make  up  the  shortage  of  Army  officers  to  fill 
the  places  allowed  by  law  for  the  aviation  section,  such  aviators 
being  given  an  indefinite  tenure,  subject  only  to  the  provision  that 
"  whenever  any  aviator  shall  have  become  unsatisfactory  he  shall  be 
discharged  from  the  Army  as  such  aviator." 

I  see  no  reason  why  an  aviator  mnj  not  resign  and  be  subsequently 
appointed  and  commissioned  in  the  Officers'  Eeserve  Corps;  but  I 
see  no  object  to  be  accomplished  in  commissioning  an  aviator,  while 
in  the  service  as  such,  as  an  officer  in  the  Officers'  Eeserve  Corps. 

(d)  May  militia  officers  who  are  qualified  fliers  be  detached  from 
their  commands  and  assigned  to  flying  duty  in  the  aviation  section 
of  the  Signal  Corps?  Ansioer:  When  the  militia  are  called  into  the 
service  of  the  United  States,  no  reason  is  perceived  why  qualified 
fliers  of  the  same  may  not  be  detached  from  their  commands  and 
assigned  to  flying  dut}^  in  the  aviation  section  of  the  Signal  Corps  in 
the  same  manner  as  may  other  officers  in  the  service  of  the  United 
States,  but  subject  to  any  limitations  on  their  use  incident  to  their 
status  as  Organized  Militia. 

(6-301,  J.^A.  G.,  July  10,  1916.) 


DESEE.TEE.S:   Payment  of  reward  for  arrest  of  deserting  militiamen  or 
national  guardsmen. 

The  question  was  presented  whether  a  reward  is  pa.yable  for  arrest 
of  deserting  members  of  the  Organized  Militia  or  National  Guard 
inducted  into  the  service  of  the  United  States.  The  Army  appropri- 
ation act,  in  the  item  for  incidental  expenses,  provides : 

"  For  the  apprehension,  securing,  and  delivering  of  deserters, 
including  escaped  military  prisoners,  and  the  expense  incident  to 
their  pursuit,  and  no  greater  sum  than  $50  for  each  deserter  or 
escaped  military  prisoner  shall,  in  the  discretion  of  the  Secretary 
of  War,  be  paid  to  any  civil  officer  or  citizen  for  such  service  and 
expenses." 

Held^  that  none  of  the  provisions  of  law  or  regulations  on  the 
subject  makes  any  distinction  between  deserters  from  the  Regular 
Army  and  others,  and  that  as  the  members  of  the  National  Guard 
and  Organized  Militia,  while  in  the  service  of  the  United  States,  are 
subject  to  the  same  laws  and  regulations  as  regular  troops,  it  follows 
that  the  payment  of  rewards  for  their  arrest  as  deserters  is  au- 
thorized. 

(26-200,  J.  A.  a,  July  31,  1916.) 


DIGEST  OF  OPINIONS  OF  THE  .JUD<:!E  ADVOCATE  GENERAL.       593 

ENLISTED  MEN:  Continuous-service  pay. 

An  enlisted  man  of  the  Regular  Army  -whose  discharge  ^ras  author- 
ized to  enable  him  to  accept  a  commission  in  the  National  Guard,  in 
the  service  of  the  United  States,  inquired  whether  he  v.'ould  lose  his 
continuous-service  pa^^  status  by  accepting  such  commission.  The 
act  of  May  11,  1908  (35  Stat.,  105),  provides  for  continuous-service 
pay  to  those  reenlisting  within  three  months  after  their  honorable 
discharge. 

Held.,  that  there  exists  no  exception  to  the  requirement  that  reen- 
listment  must  occur  within  three  months  from  the  soldier's  discharge 
to  entitle  him  to  contirnious-<=ervice  pay. 

(34-225,  J.  A.  G.,  July  3,  1916.) 


ENLISTED  MEN:   Detail  of  noncommissioned  officers  for  service  in  Na- 
tional Guard. 

Section  36  of  the  national  defense  act  authorizes  the  Secretary  of 
War  to  detail  "  sergeants "  for  the  purpose  of  "  assisting  in  the  in- 
struction of  the  personnel  and  care  of  property  in  the  hands  of  the 
National  Guard." 

Held,  that  the  purpose  of  the  act  being  to  provide  for  the  detail  of 
competent  men  for  the  purposes  mentioned,  the  word  "  sergeants " 
should  be  construed  in  its  broader  sense  so  as  to  include  the  detail 
of  sergeants,  first  class,  in  the  few  cases  where,  on  account  of  the 
technical  knowledge  required,  the  instruction  of  the  Signal  Corps  of 
the  National  Guard  can  be  properly  given  only  b}^  such  sergeants. 

(6-156,  J.  A.  G.,  July  18,  1916.) 


ENLISTED  MEN:  Discharge  because  of  dependent  family. 

Section  29  of  the  national  defense  act  contains  the  following  pro- 
vision : 

"  That  when  by  reason  of  death  or  disability  of  a  member  of  the 
family  of  an  enlisted  man  occurring  after  his  enlistment  members 
of  his  family  become  dependent  upon  him  for  support,  he  may,  in 
the  discretion  of  the  Secretary  of  War,  be  discharged  from  the  service 
of  the  United  States  or  be  furloughed  to  the  Regular  Army  Reserve 
upon  due  proof  being  miade  of  such  condition." 

Held^  that  this  provision  repeals  section  30  of  the  act  of  February 
2,  1901  (31  Stat.,  756),  which  authorized  the  discharge  only  upon  the 
death  of  a  dependent  parent  and  after  one  year's  service. 

(6-310,  J.  A.  G.,  July  28,  1916.) 


ENLISTED  MEN:  Sates  of  pay. 

Section  19  of  the  national  defense  act  of  June  3,  1916,  in  the  part 
prescribing  the  composition  of  a  gun  or  howitzer  battery  of  Field 
Artillery,  contains  the  following  provision : 

"  When  no  enlisted  men  of  the  Quartermaster  Corps  arc  attached 
for  such  positions  there  shall  be  added  to  each  battery  of  mountain 

936G8°— 17 38 


594       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEKAL. 

artillery  one  packmaster  (sergeant,  first  class),  one  assistant  pack- 
master*  (sergeant),  and  one  cargador  (corporal)." 

No  rate  of  pay  is  prescribed  by  statute  for  a  sergeant,  first  class, 
of  Field  Artillery,  but  the  three  grades  of  enlisted  men  mentioned, 
viz,  sergeant,  first  class,  sergeant,  and  corporal,  are  provided  for 
in  the  Quartermaster  Corps  at  rates  of  $15,  $36,  and  $24,  respec- 
tively. 

IJeld,  that  it  is  clearly  the  intent  of  the  statute  that  said  rates  in 
the  Quartermaster  Corps  shall  apply  to  enlisted  men  occupying  the 
l^ositions  of  packmaster,  assistant  packmaster,  and  cargador,  respec- 
tively, whether  the  men  are  assigned  from  the  Quartermaster  Corps 
or  are  "  added  "  as  provided  by  the  act. 

(72-200,  J.  A.  G.,  July  8,  1916.) 


EXAMI!MATIO!N'S:   Matters   to   be   considered   in   determining'   general   eSi- 
ciency  of  officer. 

Held,  that  an  examining  board  in  determining  the  general  effi- 
ciency of  an  officer  for  promotion  may  consider  (1)  the  use  the  officer 
has  made  of  his  opportunities,  (2)  his  ability  to  apply  practically  his 
professional  Imowledge,  (3)  his  general  trust-svorthiness  and  ability 
in  the  performance  of  his  official  duties,  and  (4)  his  ability  to  com- 
mand troops  or  control  men. 

(64-221.3,  J.  A.  G.,  July  12,  1916.) 


GENEKAL  STAFF  COUPS:   Number  of  officers  authorized  to  be  on  duty  in 
District  of  Colum.bia. 

Section  5  of  the  national  defense  act  relating  to  the  General  Staff 
Corps  specifies  the  grades  and  number  of  officers  thereof,  all  of  Avhom 
shall  be  detailed  therein  for  periods  of  four  years,  unless  sooner 
relieved,  and  further,  that  "not  more  than  one-half  of  all  of  the 
officers  detailed  in, said  corps  shall  at  any  time  be  stationed  or  as- 
signed to  or  employed  upon  any  duty  in  or  near  the  District  of 
Columbia." 

Held^  that  general  officers  detailed  to  the  General  Staff  Corps 
must  be  regarded  as  part  of  the  one-half  of  the  officers  of  the  corps 
jjermitted  to  be  assigned  to  or  employed  on  duty  in  or  near  the  Dis- 
trict of  Columbia. 

(6-211,  J.  A.  G.,  July  25,  1916.) 


NATIONAL  GUARD:  Detail  of  officers  of,  to  duty  with,  the  Reg'ular  Army. 

Held,  that  there  is  no  legal  objection  to  detaching  officers  or  organi- 
zations of  the  National  Guard  and  Organized  Militia  inducted'into 
the  military  service  of  the  United  States  under  the  calls  of  May  9 
and  June  18,  1916,  and  detailing  them  to  duty  with  corresponding 
organizations  of  the  Regular  Army. 

(58-251,  J.  A.  G.,  July  20,  1916.) 


DIGEST  OF  OPINIONS  OF  THE  JUIKtE  ADVOCATE  GENERAL.       595 

NATIONAL  GUARD:  Discharge  of  members  by  State  authorities  after  the 
President's  call. 

After  the  receipt  of  the  President's  order  of  June  18,  1916,  calling 
the  Organized  Militia  into  the  service  of  the  United  States,  dis- 
charges were  issued  to  certain  enlisted  men  by  order  of  the  go\ernor 
of  a  State  upon  personal  pleas  by  relatives  and  friends  of  the  enlisted 
men.  Other  discharges  were  issued  b^"  organization  co»nnianders  to 
men  who  were  considered  undesirable  or  physically  unfit  for  the 
service. 

Held,  that  after  the  receipt  by  a  governor  of  the  President's  call 
he  was  unauthorized  to  order  the  discharge  of  enlisted  men,  and  that 
the  Federal  authority  alone  can  relieve  the  men  from  their  obliga- 
tion. 

(58-052,  J.  A.  G.,  July  17,  191G.) 


NATIONAL  GUARI}:  Discharge  of  officers  and  enlisted  men  for  physical 
disability. 

Section  115  of  the  national  defense  act  provides  that: 

"  Every  officer  and  enlisted  man  of  the  National  Guard  who  shall 
be  called  into  the  service  of  the  United  States  as  such  shall  be  ex- 
amined as  to  his  physical  fitness  under  such  regulations  as  the  Presi- 
dent may  prescriiDe  without  further  commission  or  enlistment." 

In  connection  with  the  induction  of  the  National  Guard  into  the 
service  of  the  United  States  inider  the  President's  call  of  June  IS, 
191C,  the  question  arose  whether  those  officers  and  enlisted  men 
found  phj^sically  unfit  for  service  should  be  discharged  from  both 
the  Federal  service  and  the  National  Guard. 

Held  as  follows:  Under  the  national  defense  act  the  National 
Guard  occupies  a  dual  status,  i.  e.,  as  a  national  force  and  also  as  a 
State  force,  and  no  officer  or  enlisted  man  can  remain  a  member  un- 
less he  is  physically  qualified  for  Federal  service.  Congress  has  pre- 
scribed the  qualifications  for  commission  or  enlistment  in  the  Na- 
tional Guard  and  has  asserted,  on  behalf  of  the  United  States,  the 
authority  to  prescribe  the  conditions  under  which  enlistments  and 
discharges  in  and  from  the  National  Guard  shall  be  made.  Section 
72  of  the  national  defense  act  restricts  discharges  in  time  of  peace, 
so  that  no  discharge  may  be  given  in  time  of  peace  "  prior  to  the  ex- 
piration of  terms  of  enlistment "  except  "  under  such  regulations  as 
the  President  may  prescrlhe.''''  Section  115  provides  for  a  medical 
examination  to  determine  the  physical  condition  of  the  officers  and 
enlisted  men  when  called  into  the  service  of  the  United  States,  and 
it  appears  clear  that  an  officer  or  enlisted  man,  upon  being  examined 
as  required  in  that  section  and  found  physically  defective,  must  be 
discharged  not  only  from  the  operation  of  the  call  into  the  Federal 
service,  but  also  from  the  National  Guard.  In  the  case  of  an  en- 
listed man  the  discharge,  when  ordered,  should  be  effected  b}'^  a  dis- 
charge in  writing,  signed  by  the  proper  National  Guard  commander, 
under  the  provisions  of  section  72  of  the  national  defense  act,  and 
should  be  so  worded  as  to  show  that  it  is  a  discharge  not  only  from 
the  operation  of  the  Federal  call,  but  also  from  the  National  Guard. 
With  respect  to  a  commissioned  officer,  a  discharge  should  be  ordered 
by  the  President  and  should  purport  to  be  a  discharge  from  the 
National  Guard. 

(28-210,  J.  A.  G.,  July  18,  1916.) 


596       DIGEST  OF  OPII^IOlSrS  OF  THE  JUDGE  ADVOCATE  GENEEAL. 

NATIONAL  GUAUD:  Inspectors  of  small-arms  practice. 

An  opinion  was  requested  respecting  the  status  of  inspectors  of 
small-arms  practice  under  the  national  defense  act.  Section  3  of  the 
militia  act  of  January  21,  1903,  as  amended  May  27,  1908  (35  Stat., 
899),  proA-iding-  for  the  organization,  armament,  and  discipline  of 
the  Organized  Militia  in  conformity  with  that  prescribed  for  the 
Iicgular  Army,  contained  a  proviso  authorizing  inspectors  of  small- 
arms  practice  for  divisions,  brigades,  regiments,  etc.  Section  60  of 
the  national  defense  act  reenacts  the  requirements  as  to  conformity 
to  the  organization  prescribed  for  the  Regular  Army,  omitting  the 
said  proviso,  in  the  following  language : 

"  Except  as  otherwise  specifically  provided  herein^  the  organization 
of  the  Xational  Guard,  including  the  composition  of  all  units  thereof, 
shall  be  the  same  as  that  which  is  or  may  hereafter  be  prescribed 
for  the  Regular  Arm.y,  subject  in  time  of  peace  to  such  general  ex- 
ceptions as  may  be  authorized  by  the  Secretary  of  "War." 

Held,  in  view  of  the  omission  of  the  proviso  and  the  express  lan- 
guage that  the  re(|uirements  as  to  conformity  shall  apply  "  except 
as  otherwise  specincall}^  provided  herein,"  that  no  inspector  of  small- 
arms  practice  is  authorized  for  the  Xational  Guard,  there  being  no 
specific  authoritj"  for  such  inspectors  elsewhere  in  the  national  de- 
fense act. 

(58-210,  J.  A.  G.,  July  12,  1916.) 


NATIONAL   GUARD:  Members   of,   who   are   ofiicers   or   employees   of  the 
Goveniment;  as  to  leaves  of  absence,  etc. 

Section  80  of  the  national  defense  act  provides : 

"All  officers  and  emploj'ees  of  the  United  States  and  of  the  Dis- 
trict of  Columbia  who  shall  be  members  of  the  Xational  Guard  shall 
be  entitled  to  leave  of  absence  from  their  respective  duties,  without 
loss  of  pay,  time,  or  efficiency  rating,  on  all  days  during  which  they 
fhall  be  engiiged  in  field  or  coast-defense  training  ordered  or  au- 
thorized under  the  provisions  of  this  act." 

With  reference  to  this  provision,  questions  were  submitted  and 
answered  as  follows: 

(«)  What  constitutes  "field  or  coast-defense  training  ordered  or 
authorized  under  the  provisions  of  this  act?"  Ansicer:  The  field  or 
coast-defense  training  contemplated  is  that  prescribed  in  section  92, 
that  each  organization  of  the  Xational  Guard  "  shall  participate  in 
encampments,  maneuvers,  or  other  exercises,  including  outdoor  tar- 
get practice,  at  least  fifteen  days  in  training  each  year "  and .  again 
referred  to  in  section  91  providing  for  the  participation  of  Xational 
Guard  troops  in  "  encampments,  maneuvers,  or  other  exercises,  in- 
cluding target  practice  for  field  or  coast-defense  instruction,  either 
independently  or  in  conjunction  with  a  part  of  the  Regular  Army." 

(5)  What  appropriation  should  be  charged  to  cover  the  pay  of  the 
employees  during  their  absence  on  the  training  above  mentioned? 
Answer:  From  the  appropriations  from  which  they  are  paid  at  the 
time  they  take  such  leaves. 

{c)  Is  the  authorized  absence  with  pay  in  addition  to.  or  to  be 
deducted  from,  that  authorized  in  the  leave  act  of  February  1,  1901  ? 


DIGEST  OF  OPTXIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       597 

'Answer:  The  two  statutes  constitute  separate  authorities  for  leaves 
of  absence  with  pay.  Tlie  leaves  authorized  by  section  80  of  the 
national  defense  act  are  additional  to  those  authorized  by  the  act  of 
February  1,  1901. 

{(l)  Do  the  provisions  apply  to  the  absence  of  a  Federal  employee 
by  direction  of  the  governor  of  a  State  for  the  purpose  of  comply- 
ing with  the  following  provisions  of  section  92  of  the  national 
defense  act,  "  and  shall,  in  addition  thereto,  participate  in  encamp- 
ments, maneuvers,  or  other  exercises,  including  outdoor  target  prac- 
tice, at  least  fifteen  days  in  training  each  year"?  Answer:  Y^'s.  Tlie 
training  is  to  be  carried  out  by  the  several  States.    See  section  91. 

{e)  Do  the  exemptions  of  section  59  from  militia  duty  prohibit  the 
exempted  j^ersons  from  performing  militia  duty?  Ansicer:  That 
such  exemption  may  be  waived  by  the  individual  is  evident  from 
section  80  providing  for  leaves  of  absence  of  all  officers  of  the  United 
States  who  shall  be  members  of  the  National  Guard.  ' 

(/)  If  optional,  are  those  exempted  by  section  59  entitled  to  the 
benefits  of  section  80  of  the  national  defense  act  providing  for  leaves 
of  absence?  Answer:  Yes.  The  fact  that  the  service  is  optional  does 
not  deprive  the  person  of  leaves  of  absence  authorized  by  section  80. 

{g)  Do  the  terms  "  artificers  and  workmen"  as  employed  in  section 
69  comprise  "  all  employees  at  arsenals,"  or  are  there  excepted  classes 
such  as  those  performing  clerical,  designing,  or  supervising  duties? 
Ansiver:  The  word  "  workmen  "  is  one  of  broad  meaning.  Whether  it 
includes  those  performing  clerical,  designing,  or  supervising  duties,  I 
deem  it  unnecessary  to  determine.  I  am  informed  that  all  persons 
performing  clerical,  designing,  or  supervising  duties  in  arsenals  are 
in  the  civil  service  of  the  United  States.  They  are,  therefore,  execu- 
tiA^e  officers  of  the  United  States  and  are  exempted  under  section  59 
Avhether  they  be  included  in  the  term  "  workmen "  or  not.  Section 
59  by  exempting  executive  officers  of  the  Government  of  the  United 
States  and  artificers  and  workmen  in  the  armories  and  arsenals  in- 
cludes within  its  provisions,  I  think,  all  persons  employed  at  such 
armories  or  arsenals. 

(16-407,  J.  A.  G.,  July  11,  1916.) 


NATIONAL  GUAUD:  Minors  under  18  not  eligible  for  enlistment. 

The  question  was  presented  whether  a  minor  under  18  years  of  age 
may,  with  the  consent  of  his  parents  or  guardian,  legally  be  enlisted 
in  the  National  Guard.  Section  58  of  the  national  defense  act  pro- 
vides : 

"  The  National  Guard  shall  consist  of  the  regularlj^  enlisted  militia 
between  the  ages  of  eighteen  and  forty-five  years  organized,  armed, 
and  equipped  as  hereinafter  provided,  and  of  commissioned  officers 
between  the  ages  of  twenty-one  and  sixty-four  years." 

Held,  that  this  provision  is  controlling  and  limits  the  ages  for 
qualification  as  therein  specified,  and  that  the  provisions  in  section  27 
relating  to  the  ages  for  enlistment  or  muster  in  have  no  application 
to  the  National  Gunrd. 

(34-110,  J.  A.  G.,  July  7,  1910.) 


598       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

NATIONAL  GUARD:  Passing'  of  enlisted  men  to  National  Guard  Beserve 
while  in  the  Federal  service. 

Enlisted  men  of  the  Organized  Militia  who  qualify  as  national 
jiuardsmen  under  sections  69  and  70  of  the  national  defense  act  of 
June  3,  15)1(5,  respecting  the  oath  and  contract  of  enlistment,  become 
bound  thereby  for  six  years'  service,  three  years  in  the  "  active  or- 
ganization and  the  remaining  three  years  in  the  National  Guard 
reserve,"  credit  being  given  for  the  "  period  already  served  under  the 
old  enlistment  contract." 

Ileld^  that  those  members  so  qualified  who  are  in  the  active  service 
of  the  United  States  under  the  President's  call  of  June  18,  1916, 
which  call  did  not  include  the  National  Guard  reserve,  are  entitled 
to  be  mustered  out  of  the  active  service  at  the  end  of  their  active  en- 
listment period  of  threo  years  for  the  purpose  of  taking  their  place 
in  the  National  Guard  reserve,  and  that  they  can  not  be  held  for 
further  active  service  against  their  will,  but  that  they  have  the  privi- 
lege^ under  section  69  of  the  national  defense  act,  of  continuing  in 
the  active  service  during  the  whole  of  the  enlistment  period ;  and  fur- 
ther^ that  they  may,  with  the  concurrence  of  the  War  Department, 
elect  to  continue  in  active  service  for  such  portion  of  the  remaining 
three  years  during  which  the  National  Guard  shall  remain  in  active 
Federal  service. 

(58-052,  J.  A.  G.,  July  26,  1916.) 


NATIONAL  GUAEB:  Telegraph  service  at  Government  rates. 

The  question  was  presented  whether  telegrams  sent  by  the  ad- 
jutant general  of  a  State  in  pursuance  of  the  President's  orders  call- 
ing out  the  National  Guard  should  be  paid  for  at  Government  rates. 
The  Government  rates  provided  for  by  section  5266,  Revised  Statutes, 
apply  to  messages  sent  by  "  officers  and  agents  "  of  the  Government 
of  the  United  States  on  official  business. 

lield^  that  the  adjutant  general  of  a  State  who  sends  telegrams  in 
pursuance  of  the  President's  orders  calling  out  the  National  Guard 
acts  as  an  agent  of  the  Federal  Government  within  the  purview  of  the 
statute,  as  the  execution  of  such  orders  is  wholly  the  business  of  the 
Government  of  the  United  States,  and  that  such  telegrams  should 
be  paid  for  fi'om  Federal  appropriations  at  Government  rates  and 
not  the  regular  commercial  rates. 

(22-050;  J.  A.  G.,  July  17,  1916.) 


NATIONAL  GUARD:  Waiver  of  exemption  from  military  duty. 

With  reference  to  section  59  of  the  national  defense  act  of  June  3, 
1916,  providing  for  the  exemption  of  certain  classes  of  persons  from 
militia  duty. 

11  eld ^  that  the  exemptions  are  personal  and  may  be  waived,  and 
that  a  person  who  waives  his  exemption  by  enlisting  in  the  National 
Guard  can  not  thereafter  during  the  enlistment  avail  himself  of  it. 

(58-052,  J.  A.  G.,  July  3,  1916.) 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       599 

OFFICERS:  Appointment  of  persons  not  citizens  of  the  United  States. 

The  pending  Army  appropriation  bill  contains  the  provision 
that— 

"  No  part  of  the  appropriation  made  in  this  act  shall  be  available 
for  the  salary  or  pay  of  any  person  hereafter,  in  time  of  peace, 
appointed  an  officer  in  the  Army,  who  is  not  a  citizen  of  the  United 
States." 

Tleld^  that  this  does  not  repeal  the  provisions  of  existing  law 
authorizing  the  appointment  of  native  Filipinos  as  officers  of  Philip- 
pine Scouts,  and  of  native  citizens  of  Porto  Rico  as  officers  in  the 
Porto  Rico  regmient. 

(6-260,  J.  A.  G.,  July  3,  1916.) 


OFFICERS:  Promotions  in  Quartermaster  Corps. 

The  new  national-defense  act  provides  for  certain  increases  of 
officers  in  the  Quartermaster  Corps  but  prescribes  no  rule  for  filling 
the  vacancies. 

Held,  that  the  new  positions  created  belong  to  the  Quartermaster 
Corps  as  a  whole,  and  the  rule  prescribed  by  the  act  of  August  3, 
1912  (37  Stat.,  591),  in  connection  with  the  reorganization  of  that 
coi^s,  is  not  applicable,  and  that  the  vacancies  are  required  to  be 
filled  according  to  the  general  rule  of  seniority  prescribed  in  section 
1  of  the  act  of  October  1,  1890  (26  Stat,  503). 

(6-224,  J.  A.  G.,  July  3,  1916.) 


OFFICERS:  Scope  of  examination  for  appointment. 

Section  16  of  the  national-defense  act  approved  June  3,  1916,  re- 
lating to  the  appointment  of  veterinarians,  contains  the  proviso — 

"  That  no  such  appointment  of  any  veterinarian  shall  be  made  un- 
less he  shall  first  pass  satisfactorily  a  practical  professional  exam- 
ination as  to  his  fitness  for  the  military  service." 

Held,  that  as  the  act  limits  the  character  of  the  examination  to  a 
practical  professional  and  physical  examination,  it  excludes  a  the- 
oretical examination,  and  the  examination  required  must  be  confined 
to  such  inquiry  as  will  determine  the  ability  of  the  applicant  skill- 
fully to  perform  his  profession,  but  may  include  a  written  examina- 
tion on  questions  of  a  practical  nature. 

(64-221.4,  J.  A.  G.,  July  1,  1916.) 


OFFICERS'   RESER,VE  CORPS:  iM umber  of   officers  authorized   in   various 
grades. 

Section  37  of  the  national  defense  act  contains  the  following  pro- 
vision : 

'■''Provided^  That  the  proportion  of  officers  in  any  section  of  the 
Officers'  Reserve  Corps  shall  not  exceed  the  proportion  for  the  same 
grade  in  the  corresponding  arm,  corps,  or  department  of  the  Regular 
Army,  except  that  the  number  commissioned  in  the  lowest  authorized 
grade  in  any  section  of  the  Officers'  Reserve  Corps  shall  not  be 
limited." 


600       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

Inquiry  was  made  whether  the  maximum  number  that  may  be  com- 
missioned in  each  grade  of  the  quartermaster  section  is  limited  and, 
if  SO,  what  the  maximum  number  may  be  in  each  grade  except  the 
lowest. 

Held,  that  this  provision  does  not  limit  the  number  w-ho  may  be 
commissioned  in  any  grade  above  the  lowest,  except  by  the  propor- 
tion which  the  number  in  that  grade  in  the  corresponding  arm,  corps, 
or  department  of  the  Kegular  Army  bears  to  the  number  in  other 
grades  in  that  arm,  corps,  or  department,  and  that  the  number  that 
may  be  commissioned  is  unlimited  so  long  as  the  proportion  between 
grades,  except  as  to  any  maximum  number  for  the  lowest,  is  main- 
tained in  the  same  manner  as  established  for  the  grades  of  the  cor- 
responding arm,  corps,  or  department  of  the  Regular  Army. 

(6-224,  J.  A.  G.,  July  7,  1916.) 


BETIIlEr  OFFICER:  Commission  in  National  Guard. 

A  retired  officer  inquired  whether  it  would  prejudice  his  Regular 
Army  status  to  accept  a  commission  as  an  officer  in  the  National 
Guard.     (Sec.  74,  national  defense  act.) 

Held,  that  the  status  of  retired  officers  will  not  be  impaired  by 
active  service  under  a  National  Guard  commission.  During  their 
service  as  National  Guard  officers  in  the  active  service  of  the  United 
States  they  will  receive  onlv  the  pay  of  their  National  Guard  offices. 

(88-5421,  J.  A.  G.,  July"  7,  1916.) 


RETIIIED  OFFICERS:  Question  as  to  pay  and  allowances  when  assigned  to 
active  duty. 

The  last  sentence  of  section  24  of  the  national  defense  act  concludes 
as  follows : 

^^And  provided  furtlier,  That  hereafter  any  retired  officer  who  has 
been  or  shall  be  detailed  on  active  duty  shall  receive  the  rank,  pay, 
and  allowances  of  a  grade  not  above  that  of  major  that  he  would 
have  attained  in  due  course  of  promotion  if  he  had  remained  on  the 
active  list  for  a  period  beyond  the  date  of  his  retirement  equal  to 
the  total  amount  of  time  during  which  he  has  been  detailed  on  active 
duty  since  his  retirement." 

With  reference  to  this  provision,  questions  were  submitted  and 
answered  as  follows : 

(a)  "  Is  a  retired  officer  detailed  at  an  institution  of  learning  on 
full-pay  status  considered  as  on  active  duty  within  the  meaning  of 
section  24,  last  sentence,  of  the  new  act  of  Congress?"  Answe7\'  Yes. 
Section  45  of  said  act  prescribes  that  the  officers  so  detailed  shall 
receive  "the  full  pay  and  allowances  of  their  grade,"  if  the  officer 
be  not  above  the  grade  of  major,  and  if  above  that  grade  the  "  same 
pay  and  allowances  as  a  retired  major  would  receive  under  the  like 
detail."  While  service  on  college  duty  has  not  been  expressly  desig- 
nated by  statute  as  active  duty,  Congress  has  authorized  the  detail 
of  active  officers  on  such  duty,  and  I  think  where  the  law  under 
which  the  detail  of  a  retired  officer  is  made  provides  that  while  on 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       601 

such  duty  he  shall  receive  the  full  pay  of  his  grade,  service  under 
such  detail  must  be  regarded  as  service  "on  active  duty"  Avithin  the 
meaning  of  section  24  of  the  national  defense  act,  above  quoted. 

(h)  "What  of  retired  officers  detailed  under  the  act  of  1904?" 
Ansfne?':  With  respect  to  a  retired  officer  detailed  to  an  educational 
institution  under  the  act  of  April  21,  1904  (32  Stat.  255),  I  think 
the  question  should  be  answered  in  the  negative.  That  statute  au- 
thorized the  detail  to  the  particular  duty  under  conditions  that  the 
detail  should  be  made  with  the  officer's  consent,  and  that  the  officer 
so  detailed  shovdd  receive  no  compensation  from  the  Government 
other  than  his  retired  pay — it  being  contemplated  that  the  institu- 
tion should  supplement  his  pay  and  provide  allowances  by  way  of 
additional  compensation.  I  think  it  is  clear  that  an  officer  detailed 
under  this  act  was  not  regarded  as  detailed  on  active  duty,  and  is 
not  to  be  regarded  as  having  been  "  on  active  duty  within  the  mean- 
ing of  section  24,  last  sentence,*'  of  the  national  defejise  act. 

(c)  "Will  an  officer  detailed  under  section  45  of  the  same  act  be 
considered  tis  on  active  duty  under  section  24?"  Answer:  This 
question  is  already  answered  under  («.).  . 

(d)  "Will  a  retired  officer  detailed  under  section  56  of  the  same 
act  be  considered  as  on  active  duty  under  section  24?  Will  he  be 
entitled  to  full  pay  and  allowances?  "  Ansv'er:  Section  56  does  not 
expressly  authorize  the  detail  of  retired  officers  or  noncommissioned 
officers  to  the  schools  and  colleges  specified  therein,  but  confers  au- 
thority for  the  detail  of  "  such  commissioned  and  noncommissioned 
officers  of  the  Army  to  said  schools  and  colleges."  I  think  that  this 
section  only  confers  authority  for  the  detail  of  officers  and  noncom- 
missioned officers  on  the  active  list,  nnd  that  the  authority  for  the 
detail  of  retired  officers  and  noncommissioned  officers  to  such  schools 
and  colleges  must  be  found  in  other  statutes. 

(88-620,  J.  A.  G.,  July  25,  1916.) 


DECISIONS  OF  THE  COMPTSOLLEE  OF  THE  TEEASURY. 
(Digests  prepared  in  the  office  of  tlie  Judge  Advocate  General.) 

ARMY  EESEBVE:  Continuous-service  pay. 

The  following  questions  were  submitted  for  decision : 

"(a)  Whether  an  enlisted  juan  who  has  been  transferred  to  the 
Army  reser\'e  may  be  discharged  from  tlie  reserve  and  reenlisted  be- 
fore the  expiration  of  his  existing  seven-j^ear  term  upon  being  called 
to  the  colors  in  time  of  war." 

"(''')  Whether  time  spent  in  the  Army  reserve,  not  Vv^ith  the  colors, 
is  to  be  counted  in  computing  continuous-service  pay." 

Held,  that  both  the  acts  of  August  24,  1912  (37  Stat.,  590),  and 
June  3,  1916  (Public  No.  85,  64th  Cong.),  provide  that  an  enlisted 
man  furloughed  to  the  Army  reserve  is  not  entitled  to  be  discharged 
and  reenlisted  until  the  expiration  of  his  seven-year  term  of  enlist- 
ment.   Question  {a)  answered  in  the  negative. 

Ileld,  as  to  question  (6),  that  the  acts  of  August  24,  1912,  and 
June  3, 1916,  contemplate  four  and  three  years,  respectively,  of  active 


602       DIGEST  OF  OPIXIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

service,  and  not  service  in  the  reserve,  in  making  up  an  enlistment 
period  for  the  purpose  of  computing  continuous-service  pay,  and 
that,  therefore,  time  spent  in  the  Arniy  reserve,  not  with  the  colors, 
can  not  be  counted  in  computing  continuous-service  pay. 
(Comp.  Treas.,  June  23,  1916.) 


CADETS:  Burial  expenses. 

In  the  case  of  a  cadet,  United  States  Military  Academy,  who  died 
at  Eock  Island  Arsenal,  111.,  request  was  made  for  funds  for  the 
payment  of  bill  for  services  rendered  in  furnishing  casket  and  pre- 
paring tha  remains  for  shipment. 

Held^  that  the  expenses  were  not  payable  from  the  funds  appro- 
priated by  the  sundry  civil  appropriation  act  for  the  disposition  of 
the  "  remains  of  officers,  including  acting  assistant  surgeons,  and 
enlisted  men  of  the  Army  active  list  *  *  *  "  for  the  reason  that 
the  cadets  are  neither  officers,  acting  assistant  surgeons,  nor  enlisted 
men  of  the  Army  active  list,  and  further,  that  such  expenses  could 
not  be  paid  from  the  appropriation  for  contingencies  of  the  Army 
or  any  other  existing  appropriation  for  the  Military  Establishment. 

(Comp.  Treas.,  July  28,  1916.) 


CLAISIS:  Damag-es  caused  by  tort  of  Government  employee. 

.  A  post  laundry  delivery  automobile  collided  w^ith  a  privately 
owned  vehicle,  resulting  in  $18.25  damage  to  the  latter,  the  evidence 
tending  to  show  that  the  collision  was  due  to  the  fault  or  negligence 
of  the  driver  of  the  laundry  wagon.  The  question  was  presented 
whether  the  funds  of  the  post  laundry  were  available  for  the  pay- 
ment of  the  claim. 

Held,  that  the  post  laundry,  being  a  Government  plant,  and  the 
driver  of  the  delivery  automobile  being  a  Government  employee, 
the  case  came  within  the  well-established  rule  that  damages  caused 
by  the  negligence  or  torts  of  the  officers  or  agents  of  the  Govern- 
ment, or  arising  from  unavoidable  accident,  do  not  constitute  claims 
against  the  United  States  which  the  accounting  officers  can  allow  or 
pay. 

(Comp.  Treas.,  June  30,  1916.) 


COMPENSATION^ :    Computation  of  pay  for  services  other  than  personal. 

In  making  payments  for  the  hire  of  teams  used  in  river  and  har- 
bor work  during  a  31-day  month  the  disbursing  officer  computed  the 
compensation  on  the  basis  of  30  days  to  the  month.  Held,  that  the 
act  of  June  30.  1906,  34  Stat.,  763  (see  also  par.  651,  Army  Regula- 
tions), is  confined  to  the  computation  of  compensation  of  officers, 
agents,  and  employees  of  the  United  States  for  personal  sers'ice,  and 
has  no  application  to  a  case  like  the  one  under  consideration,  for  the 
hire  of  a  wagon  and  team. 

(Comp.  Treas.,  June  29,  1916.) 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       603 

ENLISTED  MEN:  Reduction  of  grades  under  the  national  defense  act. 

With  reference  to  decreases  in  the  number  of  enlisted  men  of 
different  grades  provided  by  the  national  defense  act  and  of  the  ap- 
plicability thereto  of  the  provision  in  secti(m  28  of  that  act  that 
"  nothing  herein  contained  shall  operate  to  reduce  the  pay  or  allow- 
ances now  authorized  by  law  for  any  grade  of  enlisted  man  of  the 
Army — 

Ileld^  that  this  provision  relates  to  the  pay  of  grades  and  not  of 
individuals,  and  that  demotion  of  individual  soldiers,  if  found  neces- 
sary to  be  made  in  order  to  comply  with  the  law  providing  for  a 
reduction  in  the  members  of  grades  in  any  particular  line  of  the 
Army,  is  not  a  reduction  of  pay  or  allowances  fixed  by  law  for  such 
grades,  and  hence  would  not  be  prohibited  bv  this  provision. 

(Comp.  Treas.,  July  19,  1916.) 


MEDIC Ali  CORPS:  Computing'  length  of  service  of  dental  surgeons. 

A  decision  was  requested  whether  in  computing,  under  the  provi- 
sions of  section  10  of  the  natiojial  defense  act,  the  length  of  service 
of  dental  surgeons,  for  promotion  and  other  purposes,  all  such  dental 
surgeons  as  had  service  as  contract  or  acting  dental  surgeons  prior  to 
June  3,  1916,  if  otherwise  eligible,  should  be  given  credit  for  the 
length  of  their  service  as  such  contract  or  acting  dental  surgeons, 
in  addition  to  credit  for  service  as  first  lieutenants,  under  the  act 
of  March  3,  1911  (36  Stat.,  1054).  Section  10  of  the  national  de- 
fense act,  authorizing  the  appointment  of  dental  surgeons  as  com- 
missioned officers,  provides,  inter  alia: 

"  Dental  surgeons  shall  have  the  rank,  pay,  and  allowances  of  first 
lieutenants  until  they  have  comjileted  eight  years'  service.  Dental 
surgeons  of  more  than  eight  but  less  than  twenty-four  years'  service 
shall,  subject  to  such  examination  as  the  President  may  prescribe, 
have  the  rank,  pay,  and  allowances  of  captains.  Dental  surgeons  of 
more  than  twentj^-four  years'  service  shall,  subject  to  such  examina- 
tion as  the  President  may  prescribe,  have  the  rank,  pa}',  and  allow- 
ances of  major." 

The  act  of  March  3,  1911,  contains  the  provision  that — 

"Acting  dental  surgeons  who  have  served  three  years  in  a  manner 
satisfactory  to  the  Secretary  of  AVar  shall  be  eligible  for  appointment 
as  dental  surgeons,  and  after  passing  in  a  satisfactory  manner  an 
examination  which  may  be  prescribed  by  the  Secretary  of  War  may 
be  commissioned  with  the  rank  of  first  lieutenant  in  the  Dental  Corps 
to  fill  the  vacancies  existing  therein ;  "  and  also  contains  a  provision — 

"That  the  time  served  by  dental  surgeons  as  acting  dental  or  con- 
tract dental  surgeons  shall  be  reckoned  in  computing  the  increased 
service  pay  of  such  as  are  commissioned  under  this  act." 

Held,  that  the  provision  quoted  from  the  act  of  1911  was  not  re- 
pealed by  the  national  defense  act,  and  that  the  two  provisions  should 
l)e  read  together:  that  the  term  "  years"'  service  "  as  used  in  the  act  of 
June  3,  1916,  includes  service  under  contract  as  well  as  service  under 
commission,  and  is  limited  to  service  as  a  dental  surgeon  under  con- 
ti-act  or  commission;  and  that  therefore,  in  computing  under  said 
law  the  length  of  service  of  dental  surgeons,  for  promotion  and 


604   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEEAL. 

other  i:)urposes',  all  such  dental  surgeons  as  are  otherwise  eligible  and 
have  service  as  contract  dental  surgeons  or  acting  dental  surgeons 
prior  to  June  3,  1916,  shall  be  given  credit  for  the  length  of  their 
service  as  such  contract  dental  surgeons  or  acting  dental  surgeons, 
in  addition  to  credit  for  service  as  first  lieutenant  under  the  act  of 
March  3,  1911. 

(Conip.  Treas.,  July  22,  1910.) 


NATIONAL  GUA-BB:  Additional  pay  of  enlisted  men  qualifying  as  gun- 
ners. 

The  question  was  presented  whether  enlisted  men  of  the  Field  Ar- 
tillery of  the  Militia  or  National  Guard  in  the  service  of  the  United 
States  are  entitled  to  additional  pay  as  gunners  under  qualifications 
attained  prior  to  being  called  into  the  Federal  service,  their  exami- 
nations having  been  conducted  in  accordance  with  the  requirements 
for  the  Regular  Army. 

Held.)  that  inasmuch  as  the  requirements  for  qualifications  as  gim- 
ners  are  the  same  for  the  enlisted  men  of  the  Field  Artillery  of  the 
militia  or  National  Guard  as  for  the  enlisted  men  of  the  Eegular 
Army,  and  as  the  laws  relating  to  pay  give  the  militia,  when  called 
into  ithe  service  of  the  United  States,  the  same  pa}^  and  allowances  as 
are  or  may  be  provided  by  law  for  the  Regular  Army,  they  are  en- 
titled to  the  additional  pay  as  gimners  under  their  qualifications  at- 
tained prior  to  their  being  called  into  the  service  of  the  United  States, 
subject  to  the  conditions  imposed  by  paragraph  1344,  Army  Regu- 
lations. 

(Comp.  Treas.,  July  21,  1916.) 


NATIONAL  GUABD:  Laws  providing  for  death  gratuities  applicable  to. 

The  question  was  presented  whether  officers  and  enlisted  men  of  the 
Organized  Militia  or  National  Guard  called  or  drafted  into  the  serv- 
ice of  the  United  States  are  entitled  to  the  benefit  of  the  laws  au- 
thorizing the  pavment  of  so-called  death  gratuities.  (Act  of  May  11, 
1908,  35^Stat.,  108,  as  amended  Mar.  3,  1909,  35  Stat.,  735.) 

IleJd^  that  any  part  of  the  Organized  Militia  or  National  Guard 
brought  into  the  service  of  the  United  States  as  provided  by  law 
becomes  a  part  of  the  Army  of  the  United  States,  and  the  officers 
and  enlisted  men  thereof  are  as  effectually  in  the  military  service  of 
the  United  States  as  are  any  of  the  officers  and  enlisted  men  of  the 
Regidar  Army,  and  that  they  are  entitled  to  the  benefits  of  the  stat- 
utes under  consideration  providing  for  death  gratuities. 

(Comp.  Treas.,  July  20,  1916.) 


EETIREB  OFFICEHS:  Longevity  pay  for  active  service  in  time  of  war. 

The  question  was  presented  whether  the  following  provision  in 
section  24  of  the  national  defense  act  of  June  3,  1916,  authorized 
longevity-pay  increases: 

"  Tluit  in  time  of  war  retired  officers  of  the  Army  may  be  employed 
on  active  duty  in  the  discretion  of  the  President,  and  when  so  em- 


DIGEST  OF  OPINIONS  OP  THE  JUDGE  ADVOCATE  GENEKAL.       G05 

ployed  they  shall  receive  the  full  pay  and  aTlowances  of  their  grade: 
And  provided  further,  That  hereafter  any  retired  officer  who  has 
been  or  shall  be  detailed  on  active  duty  shall  receive  the  rank,  pay, 
and  allowances  of  the  grade,  not  above  that  of  major,  that  he  would 
have  attained  in  due  course  of  promotion  if  he  had  remained  on  the 
active  list  for  a  period  beyond  the  date  of  his  retirement  equal  to  the 
total  amount  of  time  during  which  he  has  been  detailed  on  active 
duty  since  his  retirement." 
The  act  of  March  2,  1903  (82  Stat,  932),  provides: 
"  That  hereafter,  except  in  case  of  officers  retired  on  account  of 
wounds  received  in  battle,  no  officer  now  on  the  retired  list  shall  be 
allowed  or  paid  any  further  increase  of  longevity  pay,  and  officers 
hereafter  retired,  except  as  herein  provided,  shall  not  be  allowed  or 
paid  any  further  increase  of  longevity  pay  aboA'e  that  Avhich  had 
accrued  at  date  of  their  retirement." 

-  Held,  that  the  act  of  June  3,  1916,  does  not  expressly,  or  by  neces- 
sary implication,  repeal  or  modify  any  part  of  the  act  of  March  2, 
1903,  and  that  as  the  latter  act  expressly  provides  that  time  after 
retirem.ent  shall  not  be  counted  for  longevity  purposes,  officers 
coming  within  the  provision  in  question  of  the  act  of  June  3,  1910, 
are  not  entitled  to  any  higher  pay  in  the  grade  that  they  would  have 
attained  in  due  course  of  promotion  if  they  had  remained  on  the 
active  list  than  the  pay  of  such  higher  grade  computed  on  the  length 
of  their  service  at  the  time  of  their  retirement. 
(Comp.  Treas.,  July  28,  191G.) 


COUET  DECISION. 

(Digest  prepared  in  the  office  of  the  Judge  Advocate  General.) 

ITATITIIALIZATIOM':  Alien  enlisted  men  furlonglied  to  Army  Reserve, 

Section  2166,  Revised  Statutes,  provides  that  any  alien  of  the  age 
of  21  years  and  upward,  who  has  enlisted  or  ma}'-  enlist  in  the  armies 
of  the  United  States  and  has  been  honorably  discharged,  shall  be 
admitted  to  become  a  citizen  upon  his  petition  without  any  previous 
declaration  of  intention.  The  fourth  article  of  war  declares  that  no 
discharge  shall  be  given  to  any  enlisted  man  before  his  term  of 
service  is  expired  except  by  order  of  the  President,  Secretary  of  War, 
the  commanding  general  of  a  department,  or  by  sentence  of  court- 
martial.  An  enlisted  man  (alien)  who,  after  three  years'  active 
service,  had  been  furloughed  to  the  Army  Reserve,  filed  an  applica- 
tion for  naturalization  under  section  2166,  Revised  Statutes. 

Held,  that  his  certificate  of  furlough  was  not  an  honorable  dis- 
charge entitling  him  to  apply  for  citizenship  under  section  2166, 
Revised  Statutes. 

(In  re  Markun,  232  Fed.,  1018.) 


BULLETIN  34. 

BrLLETiN  1  WAR  DEPARTMENT, 

Xo.  34.     J  Washington,  Septernber  12,  1916. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  xVrmy  for  the  month  of  August,  1916,  and  of  certain  decisions 
of  the  Comptroller  of  the  Treasury  and  of  a  court,  is  published  for 
the  information  of  the  service  in  general. 
[2458189,  A.  G.  O.] 
By  order  or  the  Secretary  of  War  : 

H.  L.  SCOTT, 
Major  General,  Chief  of  Staff. 
Official  : 

H.  P.  McCAIN, 

The  Adjutant  General. 


OPimOl^'S  OE  THE  JUDGE  ADVOCATE  GEKERAL. 

ARMY  OS-GAIMIZATIO]Nr:  Enlisted  men  for  brigade  headquarters. 

Section  3  of  the  National  Defense  Act  contains  the  provision  that 

"  Nothing  herein  contained,  however,  shall  prevent  the  President 
*  *  *  from  prescribing  new  and  different  organizations  and  per- 
sonnel as  the  efficiency  of  the  service  may  require." 

Held,  that  in  the  organization  of  brigade  headquarters  the  above 
provision  would  not  authorize  the  creation  of  any  grade  not  known 
to  the  law,  such  as  a  suggested  brigade  sergeant  major,  but  that  the 
President  in  the  organization  of  brigade,  division,  or  Army  corps 
headquarters  may  employ  such  enlisted  men  in  the  grades  and 
within  the  numerical  limits  authorized  by  law,  in  addition  to  those 
required  for  organizations,  as  he  may  determine  to  be  necessary  for 
the  purpose,  and  may,  therefore,  include  in  the  organization  of  a 
brigade  headquarters  as  a  part  thereof  and  not  detailed  from  any 
organization  a  sergeant  major  with  the  rank,  pay,  and  allowances  of 
whatever  grade  of  sergeant  major  he  may  designate;  and  further^ 
that  he  may  also  include  in  the  organization  of  a  brigade  headquar- 
ters as  personnel  thereof  and  not  pertaining  to  any  other  organiza- 
tion, such  enlisted  men  of  other  grades  authorized  by  law  as  he  may 
deem  necessary. 

(6-237,  J.  A.  G.,  Aug.  2,  1916.) 


ARMY  RESERVE:  Organization  of. 

Section  31  of  the  National  Defense  Act  authorizes  the  President 

"  to  assign  members  of  the  Regular  Army  Reserve  as  reserves  to 

particular  organizations  of  the  Regular  Army,  or  to  organize  the 

Regular  Army  Reserve,  or  any  part  thereof,  into  units  or  detach- 

60G 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       607 

ments  of  an}'-  arm,  corps,  or  tlopartment  in  such  manner  as  he  may 
prescribe,"  and,  in  the  event  of  actual  or  threatened  hostilities,  to 
""  mobilize  the  Regular  Army  Reserve  in  such  manner  as  he  may 
determine,  and  thereafter  retain  it,  or  any  part  thereof,  in  active 
service  for  such  period  as  he  may  determine  the  conditions  demand." 

Ileld^  that  the  law  contemplates  that  the  President  may  cause 
reservists  to  be  organized  at  all  times  in  the  manner  indicated  and 
that,  in  the  discretion  of  the  President,  they  may  be  attached,  as 
Fuch,  to  organizations  of  the  Regular  Army  that  are  at  maximum 
strength,  but  when  so  attached  they  are  not  constituent  parts  of  such 
organizations,  and  form  no  part  of  the  numbers  authorized  by  law 
for  such  organizations. 

(6-300,  J.  A.  G.,  Aug.  23,  1910.) 


ARMY  RESEKVE:  Physical  disability  of  members  called  to  the  colors. 

In  the  case  of  a  member  of  the  Regidar  Army  Reserve  called  to 
the  colors  it  was  found  that  he  was  afflicted  with  a  veneral  disease 
contracted  after  he  was  furloughed  to  the  reserve.  He  having  been 
accepted  as  ''  physically  fit  lor  service "  upon  reporting  for  duty, 
except  for  this  disability  requiring  only  temporary  hospital  treat- 
ment, the  question  v^as  presented  whether  his  absence  from  duty 
Avhile  in  the  hospital  on  this  account  came  within  the  purview  of 
the  act  of  August  24,  1912  (37  Stat.,  572),  providing  for  deduction 
from  the  pay  of  an  officer  or  enlisted  man  for  time  absent  from  duty 
on  account  of  disease  resulting  from  his  own  misconduct,  etc.  (O.  O. 
31,  W.  D.,  1912). 

Held,  that  when  the  reservist  was  accepted  upon  reporting  for 
duty  he  was  in  active  service,  and  thereupon  became  subject  to  the 
statute  referred  to;  that  the  disease  he  had  is  regarded  as  a  disease 
proscribed  by  that  act,  and  that  as  it  was  incurred  during  his  current 
enlistment,  which  was  entered  into  subsequent  to  the  passage  of  that 
act,  he  was  not  entitled  to  pay  for  the  time  he  was  absent  from  duty 
on  account  of  such  disease. 

(6-300,  J.  A.  G.,  Aug.  29,  1916.) 


CONTRACTS:   Questions   arising'   out   of  the   default   of  contractor;   appro- 
priations. 

A  contractor  for  furnishing  Quartermaster  supplies  defaulted 
and,  in  accordance  with  the  provisions  of  the  contract,  th«  Govern- 
ment purchased  the  required  supplies  in  the  open  market  at.  an  excess 
cost  of  $800.36.  The  amount  retained  from  payment  to  the  contractor 
was  only  $64,  and  the  sui'ety  bond  was  in  the  penal  sum  of  $500. 

Ileld^  that  demand  could  be  made  upon  the  surety  for  only  $500, 
■\vliich,  when  collected,  should  be  deposited  to  the  credit  of  the  ap- 
propriation for  the  supplies,  and  not  deposited  as  miscellaneous 
receipts  (IS  Comp.  Dec,  430),  and  that  the  $64  should  remain  in  the 
appropriation  for  the  supplies.  Advised  that  if  the  surety  refused 
to  pay  the  amount  of  the  penalty  on  demand  the  facts  should  be 
repoi'ted  to  the  Attorney  General  with  a  view  to  the  enforcement  of 
the  demand  by  judicial  proceedings. 

(76-742,  J. "A.  G.,  Aug.  11,  1916.) 


608       DIGEST  OF  OPINIOlSrS  OF  THE  JUDGE  ADVOCATE   GENERAL. 

CONTEACTS:  Unforeseen  conditions  not  within  the  contemplation  of  the 
parties. 

After  certain  contracts  -were  made  for  furnishing-  hay  and  bedding 
for  troops  in  the  Southern  Department  for  the  fiscal  year  1917,  which 
specified  the  probable  quantities  of  material  Avhich  would  be  required 
to  meet  the  needs  of  the  service  and -the  limits  within  which  the 
quantities  might  be  increased  or  decreased,  the  Organized  Militia 
and  National  Guard  were  called  out  for  duty  in  that  department, 
Avhich  resulted  in  a  greatly  increased  demand  for  hay  and  bedding. 
Calls  were  made  upon  the  contractors  in  the  five  weeks  beginning 
July  1,  1916,  to  deliver  more  than  one-half  of  the  quantity  specified 
in  the  contracts  for  the  entire  year. 

Held.)  that  tlie  contracts  were  entered  into  under  conditions  which 
contemplated  that  only  the  usual  number  of  troops  of  the  Eegular 
Army  would  be  stationed  in  the  Southern  Department,  and  that  the 
contracts  should  receive  execution  in  accordance  with  such  under- 
standing of  the  parties;  that,  therefore,  calls  should  be  made  under 
the  contract  for  deliveries  based  upon  the  conditions  contemplated, 
and  purchases  required  to  meet  the  needs  of  the  service  due  to  the 
calling  out  of  the  militia  troops  should  be  made  by  supplemental 
contracts  or  purchases  in  the  open  market. 

(70-700,  J.  A.  G.,  Aug.  16,  1916.) 


DEFTAL  SURGEONS:  Eelative  rank  under  National  Defense  Act. 

The  act  of  March  3,  1911,  prescribed  the  following  rule  for  the  de- 
termination of  the  rank  of  officers  of  the  Dental  Corps :  "  Officers  of 
the  Dental  Corps  shall  have  rank  in  such  corps  according  to  the  date 
of  their  commission  therein,  and  shall  rank  next  below  officers  of  the 
Medical  Reserve  Corps."  Section  10  of  the  National  Defense  Act 
creates  the  gi-ades  of  first  lieutenant,  captain,  and  major  in  the  Dental 
Corps. 

Held,  that  the  latter  provision  repealed  the  former,  and  that  the 
relative  rank  of  dental  surgeons  is  to  be  determined  by  paragrajihs  9 
and  11.  Army  Regulations,  1913. 

(82-212,  J.  A.  G.,  Aug.  19,  1916.) 


ENLISTED  MEN:  Abolishment  of  grade  of  farrier. 

The  question  was  presented  whether  a  farrier  of  a  Cavalry  organi- 
zation at  the  time  the  National  Defense  Act  went  into  effect  shoudd 
be  continued  as  a  private  or  be  appointed  to  any  grade  "  in  which 
eligible  and  fit." 

//eZfZ,  that  the  National  Defense  Act  by  not  including  farriers  in 
the  composition  prescribed  for  Cavalry  units  abolished  that  grade 
with  the  result  that  enlisted  men  holding  the  grade  of  farrier  re- 
verted to  the  grade  of  private  and  will  "continue  to  serve  as  such 
unless  they  are  appointed  to  some  grade  authorized  by  the  National 
Defense  Act. 

(6-242,  J.  A.  G.,  Aug.  4,  1916.) 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEEAL.       609 

MEDICAL  CORPS:  Increase  of  oflacers  in. 

Section  24  of  the  National  Defense  Act  declares  that — "  Except  as 
otherwise  specifically  provided  by  this  act,  the  increases  in  the  com- 
missioned and  enlisted  personnel  of  the  Kegular  Army  provided  by 
this  act  shall  be  made  in  five  annual  increments,  each  of  which  shall 
be,  in  each  grade  of  each  arm,  corps,  and  department,  as  nearly  as 
practicable,  one-fifth  of  the  total  increase  authorized  for  each  arm, 
corps,  and  department."  Section  10  fixes  the  number  of  officers  of  the 
Medical  Corps  at  approximately  seven  for  each  one  thousand  enlisted 
men. 

Ileld^  that  the  prescribed  ratio  of  seven  ofiicers  to  each  one  thou- 
sand enlisted  men  for  the  Medical  Corps  did  not  become  effective 
with  the  passage  of  the  act  of  June  3,  1916,  but  that  the  total  author- 
ized increase  of  officers  in  said  corps,  to  be  determined  according  to 
the  total  authorized  enlisted  strength,  including  all  increments,  is 
subject  to  the  provision  in  section  24  requiring  the  increases  to  be 
made  in  five  approximately  equal  increments. 

(6-227,  J.  A.  G.,  Aug.  19, 1916.) 


NATIONAL  GUARD:  Authority  of  governor  to  accept  officer's  resignation. 

The  question  was  presented  whether  the  governor  of  a  State  has 
the  power  to  accept  the  resignation  of  an  officer  of  the  National 
Guard  who  is  in  the  service  of  the  United  States  under  a  Federal  call. 
Section  77  of  the  National  Defense  Act  provides,  inter  cdicu,  that — 

"  Commissions  of  officers  of  the  National  Guard  may  be  vacated 
upon  resignation^  absence  without  leave  for  three  months,  upon  the 
recommendation  of  an  efficiency  board,  or  pursuant  to  sentence  of  a 
court-martial.     *     *     *  " 

Ileld^  that  Congress,  by  the  National  Defense  Act,  having  assumed 
control  respecting  the  qualifications  of  officers  and  enlisted  men  of 
the  National  Guard,  and  respecting  the  continuity  of  their  service 
therein,  it  clearly  appears  to  be  the  purpose  of  the  statute  that  even 
in  time  of  peace  the  assent  of  the  War  Department  is  required  to  the 
separation  of  an  officer  from  the  National  Guard  by  resignation,  and 
a  fortiori  where  the  officer  is  in  the  service  under  a  Federal  call. 

(58-241,  J.  A.  G.,  July  28, 1916.) 


NATIONAL  GUARD:  Effect  of  discharge  of  members  by  the  United  States, 

The  question  was  presented  whether  National  Guardsmen  in  the 
active  service  of  the  TTnited  States  and  discharged  therefrom  on  ac- 
count of  dependent  families,  may  be  retained  in  the  National  Guard 
service  at  their  home  station. 

Held^  as  follows: 

"  The  National  Defense  Act,  under  which  the  National  Guard  is 
organized,  prescribes  for  enlisted  men  a  dual  oath  involving  respon- 
sibility both  to  the  State  in  the  National  Guard  of  which  they  are 
enlisted  and  to  the  United  States.  One  of  the  effects  of  the  National 
Defense  Act  is  to  require  that  the  enlisted  men  thereof  must  be  quali- 
fied for  the  service  of  the  United  States  as  well  as  for  thfi  service  of 

93668°— 17 39 


610       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

the  State  and  be  bound  by  the  terms  of  their  oaths  of  enlistment  to 
the  ser\'ice  of  each  in  order  to  be  recognized  as  a  member  of  the  Na- 
tional Guard.  I  think  it  is  plain  that  when  the  National  Guard  so 
organized  is  in  the  service  of  the  United  States  the  general  govern- 
ment may  legally  determine  when  members  thereof  shall  be  dis- 
charged therefrom.  When  it  has  been  determined  that,  for  any  cause, 
an  enlisted  man  shall  be  discharged  and  a  discharge  has  been  issued, 
the  enlisted  man  so  discharged  is  released  from  his  obligation  to  the 
United  States  by  that  action,  and,  since  he  is  no  longer  obligated  to 
the  United  States  under  the  terms  of  his  oath,  he  does  not  meet  the 
requirements  for  recognition  as  a  member  of  the  National  Guard. 
Therefore  he  cannot  continue  as  a  member  of  the  National  Guard, 
one  of  the  requirements  for  membership  therein  being  that  he  shall 
be  under  the  obligation  of  an  oath  to  serve  the  United  States." 
(28-223,  J.  A.  G.,  Aug.  25, 1916.) 


NATIONAL  GUABD:  Increase  of  pay  for  aviation  service. 

The  question  was  presented  whether  officers  and  enlisted  men  of 
militia  organizations  brought  into  the  service  of  the  United  States 
are  entitled,  while  on  duty  requiring  them  to  participate  regularly 
and  frequently  in  aerial  flights,  to  increase  of  pay  for  such  service, 
the  same  as  provided  by  statute  for  officers  and  enlisted  men  of  the 
Regular  Army. 

Held,  that  while  the  Aviation  Section  of  the  Signal  Corps,  pro- 
vided for  in  section  16  of  the  National  Defense  Act,  is  prescribed  for 
the  Regular  Army  only,  and  officers  and  enlisted  men  of  the  National 
Guard  are  not  eligible  for  detail  to  fill  places  therein,  and  while  there 
is  no  corresponding  Signal  Corps  or  Aviation  Section  prescribed  for 
the  National  Guard,  there  may  be  Aviation  Squadrons,  or  unit  parts 
thereof,  in  the  National  Guard  of  the  several  States  as  component 
parts  of  the  "complete  higher  tactical  units"  contemplated  by  sec- 
tion 60,  idem,,  and  the  officers  and  enlisted  men  therein  will,  when 
duly  qualified,  be  entitled  while  in  the  actual  service  of  the  United 
States,  or  while  attending  encampments  or  maneuvers  ordered  by  the 
Secretary  of  War,  to  the  same  pay  and  allowances  as  officers  and 
enlisted  men  of  corresponding  grades  of  the  Regular  Army  receive, 
including  increase  of  pay  while  on  duty  requiring  them  to  participate 
regularly  and  frequently  in  aerial  flights. 

(58-211,  J.  A.  G.,  Aug.  25, 1916.) 


NATIONAL  GITAKD:  Original  appointments  of  officers  to  advanced  grade. 
The  question  was  presented  whether  the  governor  of  a  State  can 
make  an  original  appointment  of  a  person  to  the  grade  of  captain  or 
niajor  m  the  medical  corps  of  the  National  Guard,  or  whether  such 
office  must  be  filled  hj  promotion  from  a  lower  grade  in  conformity 
with  the  rules  governing  appointments  in  the  Regular  Army.  Sec- 
tion 60  of  the  National  Defense  Act  contains  the  following  provision, 
which  IS  substantially  a  reenactment  of  a  similar  provision  in  section 
3  of  the  Militia  Act  of  1903,  as  amended : 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       611 

"  Except  as  otherwise  specifically  provided  herein,  the  organization 
of  the  National  Guard,  including  the  composition  of  all  units  thereof, 
shall  be  the  same  as  that  which  is  or  may  hereafter  be  prescribed  for 
the  Kegular  Army,  subject  in  time  of  peace  to  such  general  exceptions 
as  may  be  authorized  by  the  Secretary  of  War." 

llelcl^  that  the  conformity  of  organization  of  the  National  Guard 
to  the  Regidar  Army  ref^iiired  by  the  statute  does  not  relate  to  the 
qualifications  of  officers  for  appointment  or  promotion ;  that  the 
matter  of  appointment  or  promotion  in  the  National  Guard  rests  pri- 
marily with  the  governor  of  the  State,  subject  to  the  rules  prescribed 
in  section  74  of  the  National  Defense  Act  relating  to  the  classes  of 
persons  from  which  National  Guard  officers  shall  be  appointed,  and  in 
section  75,  relating  to  examinations  to  determine  qualifications,  afid 
that,  therefore,  an  original  appointment  to  the  grade  of  major  may, 
subject  to  the  restrictions  mentioned,  be  made  by  the  governor  with- 
out regard  to  the  previous  service  of  the  appointee ;  but  that  inasmuch 
as  the  office  of  captain  in  the  Medical  Corps  has  no  existence  inde- 
pendent of  the  person  qualified  by  a  period  of  service  to  fill  it,  ap- 
pointees to  that  grade  in  the  Medical  Corps  of  the  National  Guard 
must  have  served  as  first  lieutenants  for  the  period  fixed  by  law. 

(58-241,  J.  A.  G.,  Aug.  14,  1916.) 


OFFICEUS'  RESERVE  CORPS:  Organizational  questions. 

The  second  paragraph  of  section  37  of  the  National  Defense  Act 
authorizes  the  President  to  appoint  and  commission  as  reserve  officers 
in  the  various  sections  of  the  Officers'  Eeserve  Corps,  in  all  grades  up 
to  and  including  that  of  major,  such  citizens  as  shall,  upon  examina- 
tion, be  found  qualified  to  hold  such  commissions, 

"  Provided^  That  the  proportion  of  officers  in  any  section  of  the 
Officers'  Reserve  Corps  shall  not  exceed  the  proportion  for  the  same 
grade  in  the  corresponding  arm,  corps,  or  department  of  the  Regular 
Army,  except  that  the  number  commissioned  in  the  lowest  authorized 
grade  in  any  section  of  the  Officers'  Reserve  Corps  shall  not  be 
limited." 

Held.,  that  there  are  no  organizational  grades  in  the  Veterinary 
Corps  nor  in  the  Dental  Corps  and  that,  therefore,  veterinarians  can 
be  appointed  in  the  Officers'  Reserve  Corps  only  as  assistant  veteri- 
narians with  the  rank  of  second  lieutenant,  and  dental  surgeons  may 
be  appointed  therein  only  as  first  lieutenant,  and  that  in  neither  case 
can  the  officer  attain  a  higher  rank  except  through  active  service  for 
the  time  prescribed  for  the  attainment  of  higher  rank. 

IleUl  f%irthei\  that  as  to  the  Medical  Department,  the  three  corps: 
Medical,  Dental,  and  Veterinary,  are  to  be  regarded  as  separate  and 
distinct  corps,  for  the  purpose  of  determining  the  proportionate  num- 
ber of  officers  to  be  commissioned  in  the  Officers'  Reserve  Corps ;  and 
that  the  proportion  of  the  grades  in  the  Medical  Section  proper  of  the 
Officers'  Reserve  Corps  should  be  determined  by  the  proportion  which 
the  number  in  the  corresponding  grades  in  the  Medical  Corps  of  the 
Regular  Army  bear  to  the  total  number  of  officers  in  the  Medical 
'Corps  of  the  Regular  Army,  the  grades  of  captain  and  first  lieutenant 


612       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

in  the  Medical  Corps  of  the  Eegular  Army  being  considered  one 
grade,  that  of  first  lieutenant,  in  making  the  computation ;  and  that 
the  appointments  to  the  dental  and  veterinary  sections  of  the  Officers' 
Reserve  Corps,  being  only  to  the  lowest  in  each,  will  be  unlimited  in 
that  grade. 

lldd  further^  that  for  purposes  of  appointment  in  the  Officers'  Re- 
serve Corps  the  lowest  authorized  grade  in  the  Quartermaster  Corps 
is  that  of  captain^  to  which  grade  in  the  Officers'  Reserve  Corps  ap- 
pointments may  be  unlimited. 

Held  further^  that  the  Signal  Corps  proper  and  the  Aviation  Sec- 
tion each  constitutes  a  corps  which  should  form  the  basis  of  an  organi- 
zation in  the  Officers'  Reserve  Corps,  the  lowest  grade  in  the  Signal 
Corps  being  that  of  first  lieutenant.  As  to  the  Aviation  Section, 
held^  that  the  grade  of  aviator,  provided  for  in  section  13  of  the 
National  Defense  Act,  was  created  as  a  means  of  meeting  contin- 
gencies and  supplying  casual  deficiencies,  and  should  be  regarded  as 
temporary  ancl  not  as  a  permanent  grade  or  integral  part  of  the 
Aviation  Section,  such  as  should  be  made  a  basis  for  appointments  in 
the  Officers'  Reserve  Corps,  but  the  lowest  gi-acle  of  the  Aviation  Sec- 
tion in  which  an  unlimited  number  of  officers  may  be  appointed  is  that 
of  first  lieutenant. 

(6-301,  J.  A.  G.,  Aug.  29,  1916.) 


VETERINARIANS:  Appointments  under  the  National  Defense  Act. 

Section  16  of  the  National  Defense  Act  authorizes  the  appointment 
of  "  such  veterinarians  of  the  Quartermaster  Corps  as  are  now  em- 
ployed in  said  corps"  as  commissioned  officers,  with  rank,  pay,  and 
allowances  according  to  length  of  service  as  specified  therein. 

Held.,  that  those  persons  employed  as  inspectors  of  horses  and  as 
inspectors  of  meats,  who  are  qualified  veterinarians,  come  within 
such  authorization  and  may  be  commissioned  in  the  Veterinary 
Corps  with  rank,  pay,  and  allowances  as  specified  in  the  act. 

(64-221.4,  J.  A.  G.,  Aug.  16,  1916.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

PAY  AND  ALLOWANCES:  Foreign  service  pay. 

The  question  was  presented  whether  troops  regularly  stationed  in 
the  Canal  Zone  should  be  regarded  as  in  foreign  service  and  entitled 
to  foreign  service  pay  when  their  duties  take  them  across  the  line 
into  the  Republic  of  Panama. 

Ileld^  that  the  duty  to  be  performed  by  the  troops  in  the  Republic 
of  Panama  being  merely  incident  to  their  assignment  in  the  Canal 
Zone,  they  are  not  entitled  to  foreign  service  pay.  Decision  of  June 
26,  1916.  22  Comp.  Dec,  701,  distinguished. 

(Comp.  Treas.,  Aug.  7,  1916.) 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       613 

PAY  AND  ALLOWANCES:  Militia  officers  and  enlisted  men. 

In  respect  of  officers  and  enlisted  men  of  the  Organized  Militia 
or  National  Guard  called  into  the  service  of  the  United  States,  the 
Comptroller  of  the  Treasury  has  made  the  following  rulings,  based 
upon  existing  law: 

{a)  Neither  officers  nor  enlisted  men  are  entitled  to  count  their 
service  in  the  Organized  Militia  or  National  Gnard  before  the  date 
when  brought  into  the  actual  service  of  the  United  States  foi*  the 
purpose  of  longevity  or  continuous  service  pay.  Officers  are  entitled 
to  count  their  service  after  the  date  when  brought  into  the  actual 
service  of  the  United  States  for  the  purpose  of  longevity  pay,  but 
enlisted  men  are  not  entitled  to  count  such  service  for  the  purpose 
of  continuous  service  pay.  (Congress  has  provided  for  counting 
prior  service  in  the  Militia  or  National  Guard  in  the  case  of  officers 
and  enlisted  men  of  the  National  Guard  drafted  into  the  service  of 
the  United  States  under  section  111  of  the  act  of  June  3,  1916.) 

{h)  Officers  who  had  prior  service  in  the  Regular  Army  or  Marine 
Corps  are  entitled  to  count  such  service  for  the  purpose  of  increase 
of  pay,  but  enlisted  men  who  had  such  prior  service  are  not  entitled 
to  count  it  for  such  purpose — except  for  one  enlistment,  as  provided 
in  the  act  of  May  11,  1908. 

(<?)  An  enlisted  man  discharged  from  the  Regular  Army  who  is 
given  a  commission  in  a  Militia  or  National  Guard  organization 
brought  into  the  actual  service  of  the  United  States  is  entitled  to 
count  his  service  in  the  Regular  Army  for  the  purpose  of  increase  of 
pay  as  a  commissioned  officer  of  the  Militia  or  National  Guard,  but 
an  enlisted  man  so  discharged  who  enlists  in  such  an  organization  is 
not  entitled  to  count  his  service  in  the  Regular  Army  for  the  purpose 
of  such  increase  of  pay,  and  in  either  case,  if  he  remains  out  of  the 
Regular  Army  for  a  period  of  more  than  three  months,  he  loses  his 
right  to  count  the  continuous  service  which  he  had  when  discharged 
from  the  Regular  Army  in  the  event  that  he  again  enlists  in  the 
Regular  Army. 

(</)  A  commissioned  officer  of  the  Regular  Army  who  holds  a  com- 
mission in  a  higher  grade  in  the  Militia  or  National  Guard  brought 
into  the  actual  service  of  the  United  States  is  entitled  to  the  pay  of 
the  grade  he  holds  in  the  Militia  or  National  Guard,  and  for  such 
time  as  he  holds  it.  he  is  not  entitled  to  pay  of  his  grade  under  his 
commission  in  the  Regular  Army.  The  pay  in  the  higher  grade  is 
his  "annual  pay"  within  the  meaning  of  the  act  of  May  11,  1908 
(35  Stat.,  108),  and  it  is  on  that  pay  that  such  officer  is  entitled  to 
have  his  longevity  increase  of  pay  computed. 

(Comp.  Treas.,  Aug.  28,  1916.) 


614       DIGEST  OF  OPINIONS  OP  THE  JUDGE  ADVOCATE  GENERAL. 

DECISION  OF  THE  COURT. 

(Digest  prepared  in  the  office  of  the  Judge  Advocate  General.) 

NEUTRALITY  LAWS:  What  constitutes  a  "  military  expedition  or  enter- 
prise." 

Five  persons  were  indicted  in  the  Southern  District  of  New  York 
for  conspiring  and  taking  steps  to  blow  up  the  Welland  Canal  in 
Canada  in  violation  of  section  13  of  the  Federal  Criminal  Code, 
which  provides: 

"  Whoever,  within  the  territory  or  jurisdiction  of  the  United 
States,  begins,  or  sets  on  foot,  or  provides  or  prepares  the  means  for, 
any  military  expedition  or  enterprise,  to  be  carried  on  from  thence 
against  the  territory  or  dominions  of  any  foreign  prince  or  state,  or 
of  any  colony,  district,  or  people,  with  whom  the  United  States  are 
at  peace,  shall  be  fined  not  more  than  three  thousand  dollars  and 
imprisoned  not  more  than  three  years." 

The  alleged  puipose  in  the  intended  destruction  of  the  canal  was 
to  cripple  the  transportation  facilities  of  Great  Britain  used  for  the 
transportation  of  military  forces. 

Held,  that  in  order  to  promote  a  "  military  expedition  or  enter- 
prise," denounced  by  the  act,  there  need  not  necessarily  be  a  complete 
and  high  degree  of  military  organization,  but  that  if  there  be  a  pre- 
concerted plan  of  operations,  with  leadership,  and  a  coordination  of 
men  and  arms  and  munitions  and  other  means  for  attacking  the 
armies  or  navies  of  the  belligerent,  or  crippling  or  destroying  her 
military  institutions,  set  on  foot  for  the  purpose  and  with  the  inten- 
tion of  so  attacking  the  belligerent  nation  in  either  aspect,  and 
thereby  to  render  aid  and  assistance  to  the  enemy,  the  military  enter- 
prise or  expedition  contemplated  by  the  statute  would  seem  to  be 
complete. 

{United  States  v.  Tauscher^  et  al.,  233  Fed.,  597.) 


BULLETIN  39. 

Bulletin  1  WAR  DEPARTMENT, 

No.  39.   J  Wasuington,  October  6,  1916. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  Sejitember,  1916,  and  of  certain  de- 
cisions of  the  Comptroller  of  the  Treasury  and  of  a  court,  is  pub- 
lished for  the  information  of  the  service  in  general. 
[2471382,  A.  G.  O.] 

By  ORDER  or  the  Secretary  of  War  : 

TASKER  H.  BLISS, 

Major  General^  Aoting  Chief  of  Staff. 
Official  : 

H.  P.  McCAIN, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ARMY  RESERVE:  Promotion  of  members  in  active  service. 

With  reference  to  members  of  the  Regular  Army  Reserve  called  to 
the  colors  and  assigned  to  particular  organizations  of  the  Regular 
Army  (sec.  31,  national  defense  act), 

Held^  that  when  so  assigned,  reservists  are  eligible  for  promotion 
as  other  members  of  the  organizations  who  are  serving  in  the  active 
period  of  their  enlistment. 

(6-151.1,  J.  A.  G.,  Sept.  27,  1916.) 


DETACHED  SERVICE:  Service  in  command  of  a  headquarters  company. 

The  national  defense  act  of  June  3,  1916,  provides  for  certain 
headquarters  organizations  designated  as  headquarters  company  for 
the  Infantry  and  Artillerv,  and  headquarters  troop  for  the  Cavalry. 
(Sees.  17,  18,  and  19.) 

HeM^  that  service  of  a  commissioned  officer  in  command  of  such  a 
headquarters  company  or  troop  constitutes  service  "  with  a  troop, 
battery,  or  companv,"  within  the  purview  of  the  detached-service  act 
of  1912. 

(6-124.23,  J.  A.  G.,  Sept.  25,  1916.) 


ENLISTED  MEN :  Commissioned  service  counted  for  purposes  of  retirement. 

Section  1  of  the  act  of  March  2,  1907  (34  Stat,  1217),  provides: 
"  When  an  enlisted  man  shall  have  served  thirty  years  either  in 
the  Army,  Navy,  or  Marine  Corps,  or  in  all,  he  shall,  upon  making 
application  to  the  President,  be  placed  upon  the  retired  list,    *      *    * 

615 


616       DIGEST  OF  OPINIONS  OF   THE   JUDGE  ADVOCATE   GENERAL. 

Prmnded,  That  in  computing  the  necessary  thirty  years'  time  all 
service  in  the  Army,  Navy,  and  Marine  Corps  shall  be  credited." 

Held,  that  under  this  statute  time  served  as  a  commissioned  officer 
in  the  National  Guard  in  the  actual  service  of  the  United  States,  or 
as  a  member  of  the  Officers'  Reserve  Corps  in  active  service,  may 
properly  be  counted  toward  retirement  of  an  enlisted  man. 

(88-800,  J.  A.  G.,  Sept.  22,  1916.) 


ENLISTED  MEN:  Pay  of  members  of  Coast  Artillery  Bands. 

Section  20  of  the  national  defense  act  prescribing  the  composition 
of  organizations  of  the  Coast  Artillery  Corps  operated  to  abolish 
the  three  gi-ades  of  chief  musician,  principal  musician,  and  chief 
trumpeter  in  the  Coast  Artillery  Bands,  and  created  in  lieu  thereof 
the  two  grades  of  band  leader  and  assistant  band  leader.  In  a  case 
where  the  principal  musician,  by  reason  of  this  statutory  change, 
was  reduced  from  that  grade  to  band  corporal  the  question  was  pre- 
sented, in  view  of  the  provision  in  section  28,  national  defense  act, 
that — 

"  Nothing  herein  contained  shall  operate  to  reduce  the  pay  or 
allowances  now  authorized  by  law  for  any  grade  of  enlisted  men  of 
the  Army  " — whether  he  was  not  entitled  to  receive  the  pay  of  his 
former  grade  of  principal  musician. 

Held,  that  the  effect  of  the  provision  quoted  from  section  28  is 
only  to  prevent  the  reduction  in  the  pay  of  grades  and  has  no  appli- 
cation where  a  grade  is  abolished  and  a  new  grade  created  in  lieu 
thereof,  as  in  the  present  case,  and  that,  therefore,  the  band  corporal 
who  was  reduced  from  a  principal  musician  could  not  w^hile  he  held 
the  position  of  band  corporal,  receive  more  as  base  pay  than  that 
prescribed  by  the  statute  for  that  grade. 

(8-110,  J.  A.  G.,  July  17,  1916.) 


ENLISTMENTS:  Conviction  of  a  felony  a  disqualification. 

An  enlisted  man  of  the  National  Guard  was  convicted  of  a  crime 
in  a  Federal  civil  court  and  sentenced  to  imprisonment  for  1  year 
and  10  months.  By  section  335  of  the  Federal  Penal  Code  it  is  pro- 
vided that  "  all  offenses  which  may  be  punished  by  death  or  imprison- 
ment for  a  term  exceeding  one  year  shall  be  deemed  felonies,"  and  by 
section  1118,  Revised  Statutes,  it  is  provided  that  "no  person  who 
has  been  convicted  of  a  felony  shall  be  enlisted  or  mustered  into  the 
military  service."  Section  69  of  the  national  defense  act  declares 
with  reference  to  the  National  Guard  that  "  the  qualifications  for 
enlistment  therein  shall  be  the  same  as  those  prescribed  for  admis- 
sion to  the  Regular  Army." 

Held,  that  the  man,  having  been  convicted  of  a  felony,  was  dis- 
qualified for  reenlistment  in  the  military  service,  including  the  Na- 
tional Guard,  and  that  a  pardon  would  not  remove  the  disqualifica- 
tion; and  he  could  not  therefore  be  reenlisted  or  mustered  into  the 
military  service  of  the  United  States  except  upon  the  removal  of  the 
disqualification  by  an  act  of  Congress. 

(58-232,  J.  A.  G.,  Sept.  23,  1916.) 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       6l7 

NATIONAL  GUARD:  Additional  pay  of  enlisted  men  qualified  as  gunners. 

Certain  enlisted  men  of  the  Coast  Artillery,  Connecticut  National 
Guard,  whose  organizations  were  not  called  into  the  service  of  the 
United  States,  were  individually  inducted  into  the  service  for  recruit- 
ing duty,  in  the  absence  of  other  troops  available  therefor.  They 
were  qualified  as  g'unners  under  the  Regular  Army  standards,  and 
the  question  was  presented  whether  they  were  entitled  to  additional 
pay  as  gunners  for  the  time  they  were  on  recruiting  duty. 

Held^  that  the  right  to  additional  pay  as  qualified  gunners  is  for 
the  qualification  itself,  and  is  not  dependent  upon  the  character  of 
the  duty  the  men  perform,  and  that  the  men  were,  therefore,  entitled 
to  the  additional  pay  under  the  circumstances  stated. 

(72-240,  J.  A.  G.,  Sept.  9,  1916.) 


NATIONAL  GUARD:  Age  limitation  of  officers. 

Section  58  of  the  national  defense  act  of  June  3,  1916,  prescribing 
the  composition  of  the  National  Guard,  proAndes  that  it  "  shall  con- 
sist of  the  regularly  enlisted  militia  between  the  ages  of  18  and 
45  years,  organized,  armed,  and  equipped  as  hereinafter  provided, 
and  of  commissioned  officers  between  the  ages  of  21  and  64  years." 

Section  73  of  the  same  act  provides  that  commissioned  officers — 

"now  serving  under  commissions  regularly  issued  shall  continue  in 

office,  as  officers  of  the  National  Guard  without  the  issuance  of  new 


coTriTmsstonsy 


Held^  that  the  purpose  of  the  last-quoted  provision  was  merely  to 
dispense  with  the  issuance  of  new  commissions  to  officers  continuing 
to  hold  their  offices  under  the  national  defense  act,  and  that  it  does 
not  operate  to  continue  in  office  any  person  not  within  the  age  limits 
prescribed  in  section  58. 

(58-051.1,  J.  A.  G.,  Sept.  16,  1916.) 


NATIONAL  GUARD:  Commissioned  officer  holding  elective  State  office. 

The  question  was  presented  whether  a  commissioned  officer  of  the 
National  Guard  in  the  actual  service  of  the  United  States  could 
legally  hold  at  the  same  time  an  elective  State  office. 

Held^  that  this  is  a  question  to  be  determined  by  the  State  where 
the  elective  office  is  held.     (See  22  Op.  Atty.  Gen.,  90.) 

(58-241,  J.  A.  G.,  Sept.  6,  1916) 


OFFICERS'  RESERVE  CORPS:  As  to  details  for  college  duty. 

The  question  was  presented  whether  an  officer  of  the  Officers'  Re- 
serve Corps  was  eligible  for  detail,  as  an  officer  of  the  Army,  for  duty 
as  professor  of  military  science  and  tactics  at  an  educational  institu- 
tion. 

Held^  that  sections  37  and  38  of  the  national  defense  act  prescrib- 
ing the  duties  of  members  of  the  Officers'  Reserve  Corps  operate  to 
limit  the  duties  upon  which  such  officers  may  be  employed  to  activity 


618       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

in  connection  with  military  forces  actually   in  the  service  of  the 
United  States,  and  that  such  officers  are  not  eligible  for  detail,  as 
officers  of  the  Army,  for  duty  at  educational  institutions. 
(56-310,  J.  A.  G.,  Sept.  28,  1916.) 


RETIRED  OFFICERS:   Counting  active  service  under  detail  for  purposes 
of  advancement  in  grade. 

Held^  that  service  of  a  retired  officer  under  a  commission  in  the 
volunteers  during  the  Spanish-American  War  could  not  be  counted 
for  the  purpose  of  advancement  in  grade  under  section  24  of  the 
national  defense  act,  last  sentence,  which  applies  only  to  officers 
'^  detailed  to  active  duty." 

(88-600,  J.  A.  G.,  Sept  30,  1916.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  In  the  office  of  the  Judge  Advocate  General.) 

GRATUITY:   Designation   of   beneficiary. 

An  enlisted  man  designated  a  friend  as  his  beneficiary  to  whom 
the  death  gratuity  provided  for  by  Congress  (see  A.  R.  1385)  should 
be  paid.  He  afterwards  married,  but  did  not  file  with  The  Adjutant 
General  of  the  Army  a  new  form,  making  his  wife  his  beneficiary. 
After  his  death  his  wife  claimed  the  gratuity,  and  submitted  an  affi- 
davit to  the  effect  that  her  husband  had  told  her  that  he  had  changed 
his  designation  and  made  her  his  beneficiary,  and  that  he  had  sent 
the  notification  to  Washington.  She  asserted  that  she  was  sure  that 
he  had  mailed  the  new  designation.  Her  affidavit  was  corroborated 
by  a  sergeant.  Tlie  statute  (act  of  May  11,  1908,  35  Stat.,  108)  de- 
clares that — 

"  The  Secretary  of  War  shall  establish  regulations  requiring  each 
officer  and  enlisted  man  to  designate  the  proper  person  to  whom  this 
amount  shall  be  paid  in  case  of  his  death,  and  said  amount  shall  be 
paid  to  that  person  from  funds  appropriated  for  the  pay  of  the 
Army." 

Ueld^  that  the  gratuity  is  required  by  the  statute  to  be  paid  in  ac- 
cordance with  the  formal  designation  of  record,  if  there  be  such  a 
designation,  and  that  the  evidence  offered  in  the  instant  case  could 
not  be  accepted  as  sufficient  to  justify  payment  to  the  widow. 

(Compt.  Treas.,  Aug.  3,  1916.) 


TELEPHONE  SERVICE:   Installation  of,  in  private  quarters. 

The  commanding  officer  of  a  post  requested  authority  for  the  in- 
stallation of  a  telephone,  at  public  expense,  in  his  residence  quarters, 
which  he  regarded  "  as  absolutely  necessary  "  for  the  transaction  of 
public  business  "  at  other  times  than  when  at  office  headquarters." 
The  act  of  August  23,  1912  (37  Stat.,  414),  prohibits  the  use  of  public 
funds  "  for  telephone  service  installed  in  any  private  residence  or 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       619 

private  apartment."  Applying  this  statute  in  a  similar  case,  the 
Comptroller  of  the  Treasury  said : 

"  AVhere  an  officer  or  employee  of  the  Government  has  a  regular 
office  elsewhere  than  in  his  private  residence,  the  maintenance  in  such 
residence,  at  public  expense,  of  a  telephone  connected  with  his  regu- 
lar office  is  prohibited  by  the  act  of  August  23, 1912,  although  the  part 
of  his  residence  in  which  the  telephone  is  installed  is  set  apart  and 
designated  also  as  an  office."     (22  Comp.  Dec,  502.) 

Held^  that  the  installation  of  the  telephone  service  requested  at 
public  expense  was  prohibited  by  the  statute. 

(Comp.  Treas.,  Aug.  15,  1916.) 


VEHICLES:  Purchase  of  motorcycles. 

.  Section  5  of  the  act  of  July  16,  1914  (38  Stat.,  508),  forbids  the 
use  of  any  appropriation  made  by  Congress  for  the  "  purchase, 
maintenance,  repair,  or  operation  of  motor-propelled  or  horse-draAvn 
passenger-carrying  vehicles  for  any  branch  of  the  public  service  of 
the  United  States  unless  the  same  is  specifically  authorized  by  law." 
.  Held,  that  ordinary  motorcycles  are  passenger-carrying  vehicles 
within  the  prohibition  of  the  act. 
(Comp.  Treas.,  Sept.  8,  1916.) 


CGTJIIT  DECISION. 

(Digest  prepared  in  the  office  of  the  Judge  Advocate  General.) 

HABEAS  CORPUS:  Authority  of  State  oflB.cers  to  arrest  and  detain  soldiers 
for  alleged  misconduct  while  in  the  performance  of  military  duty. 

Two  members  of  a  company  of  the  Ohio  National  Guard  (a  cap- 
tain and  a  sergeant)  while  in  the  service  of  the  United  States  and 
shortly  after  the  President's  call  of  June  18,  1916,  were  arrested  by 
the  municipal  authorities  of  the  city  of  Hamilton,  Ohio,  each  on  a 
charge  of  a  breach  of  the  peace.  The  accused  each  filed  a  petition  for 
habeas  corpus  in  the  District  Court  of  the  United  States,  Southern 
District  of  Ohio.  At  the  habeas  corpus  hearing  the  evidence  was  to 
the  effect  that  the  company  to  which  the  accused  belonged  was 
marching  to  the  courthouse  square  in  the  city  of  Hamilton  for  the 
purpose  of  participating  in  a  meeting  to  encourage  the  enlistment  of 
recruits,  and  that  some  of  the  persons  assembled  along  the  way 
pressed  forward  so  as  to  obstruct  the  marching  of  the  company  and 
were  pushed  back  in  order  that  the  company  might  pass.  The  com- 
plaint against  the  officer  and  sergeant  grew  out  of  their  action  in  thus 
clearing  the  way  for  their  company.  After  their  arrest  by  the  civil 
authorities,  charges  were  preferred  against  the  officer  and  sergeant 
by  the  military  authorities  and  the  court-martial  proceedings  were 
pending  at  the  time  of  the  habeas  corpus  hearing. 

The  petitioners  were  discharged  from  the  custody  of  the  State 
authorities  under  the  following  rulings  deduced  from  previous  cases : 

{a)  An  officer  who,  in  the  performance  of  what  he  conceives  to  be 
his  official  duties,  transcends  his  authority  and  invades  private  rights, 


620       DIGEST  OF  OPINIONS  OF   THE   JUDGE  ADVOCATE   GENERAL. 

is  answerable  therefor  to  the  Government  under  whose  appointment 
he  acts,  unci  to  individuals  injured  by  his  action.  But  where  there 
is  no  criminal  intent,  he  is  not  liable  to  answer  the  criminal  process 
of  another  government.  The  Federal  courts  have  authority  in 
habeas  corpus  proceedings  to  inquire  into  the  guilt  or  innocence  of 
persons  conmiitted  on  preliminary  examination  by  a  State  tribunal 
on  a  criminal  charge  for  acts  done  in  the  service  of  the  .United  States, 
so  far  as  to  determine  whether  the  acts  were  done  wantonly  and  with 
criminal  intent;  and  if  not  so  done,  the  release  must  follow.  {In  re 
Ze^t'is-,  83  P^ed.,  159.) 

{h)  The  Government  of  the  United  States  and  of  a  State,  though 
exercised  within  the  same  territory,  occupy  different  planes,  and  the 
criminal  laws  of  the  one  have  no  application  to  acts  performed  under 
the  authority  of  the  other  in  respect  of  matters  solely  within  its  con- 
trol; and  an  officer  or  agent  of  the  United  States  who  does  an  act 
which  is  within  the  scope  of  his  authority,  as  such  officer  or  agent, 
can  not  be  held  to  answer  therefor  under  the  criminal  laws  of  another 
and  different  government.     {In  re  Fcdr^  100  Fed..  149.) 

In  the  instant  case,  the  court  said : 

"  These  men  now  before  the  court  were  in  the  employ  of  the  United 
States  as  soldiers.  They  were  mobilizing.  They  were  in  the  dis- 
charge of  their  duty  in  endeavoring  to  get  recruits.  There  is  no  evi- 
dence here  of  malice,  wantonness,  or  criminal  intent.  Under  the 
rulings  made  in  the  last  tJiree  cases  mentioned  the  State  is  not  en- 
titled to  priority."  {In  re  Wulzen  et  aJ.,  United  States  District 
Court,  Southern  District  of  Ohio,  1916.) 


BULLETIN  47. 

Buu^tinI  war  department, 

No.  47.   J  Washington,  November  16, 1916. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army  for  the  month  of  October,  1916,  and  of  certain  decisions 
of  the  Comptroller  of  the  Treasury,  is  published  for  the  information 
of  the  service  in  general. 
[2489781,  A.  G.  O.] 
By  order  of  the  Secretary  of  War  : 

H.  L.  SCOTT, 
Major  General,  Chief  of  Staff. 
Official  : 

H.  P.  McCAIN, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ARMY  RESERVE:   Continuation  of  gunner's  pay   on  being   called  to  the 
colors. 

The  question  vpas  presented  whether  a  man  furloughed  to  the  re- 
serve and  returned  to  the  colors  with  his  battery  is  entitled  to  be 
carried  as  gimner,  his  qualification  as  such  not  having  expired  by 
limitation  under  A.  R.  1344,  which  provides  for  the  payment  to  a 
soldier  of  gunner's  pay  for  one  year  after  qualification,  provided 
that  "  he  continues  to  be  a  member  of  the  Field  Artillery  or  reenlists 
in  that  branch  of  the  service  within  three  months  from  date  of  dis- 
charge therefrom." 

Held,  that  under  the  circumstances  stated  the  soldier  "  continues 
to  be  a  member  of  the  Field  Artillery,"  under  a  fair  construction  of 
the  regulation,  and  is  therefore  entitled  to  gunner's  pay. 

(13-111.2,  J.  A.  G.,  Oct.  21,  1916.) 


ARMY  RESERVE:  Pay  and  allowances  upon  responding  to  mobilization 
order  and  being  excused. 

In  the  case  of  certain  members  of  the  Regular  Army  R-eserve  who 
reported  in  compliance  with  the  mobilization  order  of  June  28,  1916, 
and  who  were  thereafter  excused  from  mobilization,  because  of  de- 
pendent families,  under  War  Department  instructions  dated  July  26, 
1916,  the  question  was  presented  as  to  their  right  to  pay  and  allow- 
ances and  mobilization  pay.    Under  section  32  of  the  National  De- 

621 


622       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

fense  Act  reservists  are  entitled  to  active  pay  and  allowances  when 
"  mobilized     *     *     *     so  long  as  they  remain  in  active  service." 

Held  as  follows: 

{a)  Under  the  statute  a  reservist  is  entitled  to  active  duty  pay 
and  allowances  from  the  time  he  reports  in  person  in  response  to  a 
mobilization  order  until  the  time  he  is  actually  excused. 

(ft)  As  to  whether  clothing  is  an  allowance  to  which  a  reservist 
is  entitled  under  the  circumstances  stated,  depends  upon  whether  he 
actually  avails  himself  of  such  allowance.  Clothing  is  essentially  an 
allowance  in  kind,  furnished  for  use  of  enlisted  men  when  they  are 
accepted  for  actual  service,  and  is  commuted  to  a  money  value  merely 
for  convenience.  Therefore,  until  a  reservist  is  examined  and  found 
physically  fit  for  service,  and  accepted  for  service,  he  is  not  entitled 
to  any  clothing  allowance.  After  he  is  accepted  for  service  he  is 
entitled  to  draw  clothing  against  his  clothing  allowance,  but  if  he  is 
excused  before  drawing  clothing  against  his  allowance  he  should  not 
be  credited  with  any  such  allowance. 

(c)  A  reservist  who,  in  obedience  to  a  summons,  reports  at  the 
designated  place  and  is  found  physically  qualified  complied  with  the 
statute  and  his  right  to  mobilization  pay  becomes  vested  and  the  same 
should  be  paid. 

(72-200,  J.  A.  G.,  Oct.  7,  1916.) 


CLAIMS:  Private  property  damaged  by  soldiers. 

A  private  truck  garden  adjacent  to  a  national  guard  mobilization 
camp  was  damaged  by  soldiers  to  the  extent  of  $175,  for  which  claim 
was  made  by  the  owner. 

Ileld^  that  the  case  came  within  the  54th  Article  of  War,  and  that 
it  was  mandatory  upon  the  commanding  officer  of  the  soldiers  guilty 
of  committing  the  damage  to  make  reparation  to  the  owner  out  of 
the  pay  of  the  offenders,  and  that  if  the  individual  offenders  could 
not  be  identified  stoppage  should  be  made  against  all  of  the  men 
present. 

(18-420,  J.  A.  G.,  Oct.  24,  1916.)     ■ 


COMMUTATION   OF  HEA.T  AND   LIGHT:   Officers  who  rent  quarters  at 
their  own  expense. 

The  Army  Appropriation  Act  for  the  fiscal  year  1917  provides : 

"  For  commutation  of  quarters,  and  of  heat  and  light,  to  commis- 
sioned officers,  members  of  the  Nurse  Corps,  and  enlisted  men  on 
duty  at  places  where  no  public  quarters  are  available." 

Held,  that  in  view  of  the  fact  that  the  appropriation  limits  the 
payment  of  commutation  of  quarters,  heat  and  light  to  officers  only 
when  on  duty  at  places  where  no  puhlic  quarters  are  available,  com- 
mutation of  heat  and  light  can  not  legally  be  paid  to  officers  on  duty 
m  the  field  who  are  provided  with  tent  quarters  and  who  rent  other 
quarters  at  their  own  expense. 

(58-720,  J.  A.  G.,  Oct.  2,  1916.) 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       623 

COMPANY  FUND:   Not  available  for  increasing  the   compensation  of  an, 
enlisted  grade. 

Authority  was  requested  to  pay  certain  mess  sergeants,  Coast  Ar- 
tillery Corps,  $5  per  month  from  the  company  fund,  as  additional 
compensation.  The  pay  of  mess  sergeants  is  fixed  by  section  28  of 
the  National  Defense  Act.  Paragraph  329,  A.  R.,  authorizes  the 
payment  of  additional  compensation  from  the  company  fund  to  en- 
listed men  for  the  performance  of  duty  therein  specified. 

Held^  that  the  company  fund  belongs  to  the  enlisted  men  as  an 
organization,  and  that  it  cannot  legally  be  used  to  augment  the 
compensation  of  any  individual  for  the  performance  of  duties  prop- 
erly belonging  to  his  grade,  and  that  paragraph  329,  A.  R.,  should 
not  be  construed  as  authorizing  additional  compensation  from  the 
company  fund  in  any  case  for  the  performance  of  the  regular  duties 
belonging  to  a  statutory  grade;  as  for  instance,  the  provision  for 
additional  pay  of  25  cents  per  diem  from  the  company  fund  to  cooks 
was  not  intended  to  apply  to  men  holding  the  regular  statutory  grade 
of  cook,  but  was  intended  to  apply  to  ordinary  enlisted  men  detailed 
for  duty  as  cooks.     (Dig.  Ops.,  J.  A.  G.,  1912,  p.  856.) 

(40-200,  J.  A.  G.,  Oct.  13,  1916.) 


DENTAL  SURGEONS:  Advancement  in  rank,  pay  and  allowances. 

Section  10  of  the  National  Defense  Act  provides  for  the  appoint- 
ment and  commissioning  of  dental  surgeons  and  for  their  advance- 
ment thereafter  according  to  length  of  service  and  subject  to  ex- 
amination. 

Held^  that  this  provision  for  advancement  does  not  contemplate 
that  it  shall  be  by  way  of  a  new  appointment  and  commission,  as 
only  the  one  office,  that  of  dental  surgeon,  is  created,  and  that  in- 
creases in  rank,  pay  and  allowances  come  by  operation  of  law  and 
depend  exclusively  upon  length  of  service  and  the  passing  of  re- 
quired examinations. 

Held  further^  that  dental  surgeons  are  entitled  to  the  benefits  of 
section  32  of  the  Act  of  February  2,  1901  (31  Stat.,  756),  providing 
that: 

"  Wlien  the  exigencies  of  the  service  of  any  officer  who  would  be 
entitled  to  promotion  upon  examination  require  him  to  remain  absent 
from  any  place  where  an  examining  board  could  be  convened,  the 
President  is  hereby  authorized  to  promote  such  officer,  subject  to  ex- 
amination, and  the  examination  shall  take  place  as  soon  thereafter 
as  practicable." 

(64-220,  J.  A.  G.,  Oct.  6,  1916.) 


DESERTERS:  Reward  for  apprehension. 

A  deserter  from  a  national  guard  organization  in  the  service  of  the 
United  States  was  apprehended  a  few  days  after  his  regiment  was 
mustered  out,  and  the  question  was  presented  whether  a  reward  for 
his  apprehension  could  legally  be  paid.  Paragraph  63,  United  States 
Mustering  Regulations  (1914),  provides  that  the  muster-out  of  the 


624       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

service  of  the  United  States  of  a  militia  organization  discharges 
from  the  Federal  service,  on  the  date  of  such  muster-out,  all  officers 
and  enlisted  men  who  on  that  date  belong  to  such  organizations,  "  in- 
cluding all  absentees  except  prisoners  of  war,  deserters,     *     *     *." 

llelA^  that  as  the  soldier  in  the  instant  case  was  not  mustered  out 
with  his  regiment,  his  status  at  the  time  of  his  apprehension  was 
that  of  a  deserter  from  the  Army  and  that  a  reward  was  legally 
payable. 

(26-200,  J.  A.  G.,  Oct.  19,  1916.) 


DETACHED  SERVICE  LAWS:  Not  amended  by  National  Defense  Act  of 
June  3,   1916. 

AVar  Department,  Judge  Advocate  General's  Office, 

October  1^,  1916. 
To  The  Adjutant  General: 

1.  First  Lieutenant  Joseph  T.  Clement,  37th  Infantry,  in  a 
letter  to  The  Adjutant  General  of  the  Army  dated  October  4,  1916, 
has  requested  that  an  approved  opinion  of  this  office  referred  to  in  an 
indorsement  of  The  Adjutant  General's  Office  dated  September  30, 
1916,  as  holding  that  so  much  of  the  National  Defense  Act  as  refers 
to  headquarters,  supply  and  machine  gun  companies  is  not  retro- 
active, be  reconsidered.  Lieutenant  Clement's  request  is  made  with 
a  view  to  having  his  service  with  the  supply  company  of  the  9th 
Infantry  from  September  9,  1914,  to  April  5,  1916,  counted  as  duty 
with  troops,  the  supply  company  of  that  regiment  being  then  or- 
ganized as  prescribed  in  the  Table  of  Organization,  1914,  and  being 
substantially  the  equivalent  of  the  supply  company  prescribed  by  the 
National  Defense  Act.  Lieutenant  Clement  expresses  the  belief 
that  the  National  Defense  Act  intends  that  the  provisions  relating 
to  the  Detached  Officers'  List,  found  in  section  25  of  that  Act  and 
reading — 

'-'•Pro-vided  further^  That  no  officer  of  any  of  said  arms  of  the 
service  shall  be  permitted  to  remain  on  said  Detached  Officers'  List 
for  more  than  forty-five  days  unless  he  shall  have  been  actually 
present  for  duty  for  at  least  two  years  out  of  the  last  preceding  six 
years  with  an  organization  composed  of  one  or  more  statutory  units, 
or  the  equivalent  thereof,  of  the  arm  to  which  he  shall  belong," 
shall  be  retroactive  and  operate  to  count  as  service  with  troops  any 
service  rendered  by  an  officer  prior  to  the  passage  of  that  act  with 
statutory  units  or  the  equivalents  of  the  statutory  units  established 
by  the  National  Defense  Act. 

2.  In  the  opinion  referred  to  by  Lieutenant  Clement,  which  was 
rendered  under  date  of  June  5,  1916,  this  office  did  not  pass  specifi- 
cally upon  the  question  whether  the  provisions  of  the  National  De- 
fense xVct  relating  to  the  Detached  Officers'  List  amended  the  de- 
tached service  laws  or  was  retroactive  in  any  respect,  but  said  with 
reference  to  the  organization  of  headquarters  companies  and  the 
service  of  adjutants  therewith  that — 

"As  regards  the  application  of  the  Bill  to  existing  regiments,  it  is 
self -executing  and  operates  from  the  date  of  its  approval  upon  the 
headquarters  company  whose  elements  are  already  in  existence  and 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       625 

by  the  Bill  are  combined  into  the  single  organization  so  denominated. 
Even  if  a  minor  element  or  so  be  lacking,  all  substantial  elements  of 
the  new  organization  are  already  in  existence,  and  such  a  slight 
deficiency  would  not  prevent  the  immediate  operation  of  the  Act. 
A  regimental  adjutant,  therefore,  actually  present  in  a  duty  status 
with  respect  to  such  a  headquarters  company,  is,  and  must  be  held 
to  be,  on  duty  with  a  company  within  the  meaning  of  the  detached 
service  law." 

3.  However,  the  effect  of  the  proviso  of  section  25  relied  upon  by 
Lieutenant  Clement  was  discussed  by  this  office  in  an  opinion  ren- 
dered September  8,  1916,  which  has  been  approved  by  the  Secretary 
of  War.    In  the  opinion  it  was  said : 

"  It  is  the  opinion  of  this  office  that  the  following  proviso  in  section 
25  of  the  National  Defense  Act — 

" '  That  no  officer  of  any  of  said  arms  of  the  service  shall  be  per- 
mitted to  remain  on  said  Detached  Officers'  List  for  more  than  forty- 
five  days  unless  he  shall  have  been  actually  present  for  duty  for  at 
least  two  years  out  of  the  last  preceding  six  years  with  an  organiza- 
tion composed  of  one  or  more  statutory  units,  or  the  equivalent  there- 
of, of  the  arm  to  which  he  shall  belong,'  as  its  terms  indicate,  relates 
to  eligibility  for  the  Detached  Officers'  List  only,  and  not  to  eligibility 
for  detached  service  from  troops,  and  that  it  does  not  amend  the 
Detached  Service  Acts  of  August  24,  1912,  and  April  27,  1914." 

4.  Since  it  has  been  determined  that  the  detached  service  laws  have 
not  been  amended  by  the  National  Defense  Act,  it  follows  that  serv- 
ice of  an  officer  below  the  grade  of  major  which  has  not  been  rendered 
with  a  troop,  company  or  battery  of  the  arm  in  which  he  holds  com- 
mission cannot  be  counted  as  service  with  troops  within  the  meaning 
of  the  detached  service  law.  Therefore,  since  during  the  period 
covered  by  Lieutenant  Clement's  service  with  the  supply  company  of 
the  9th  Infantry  a  supply  company  was  not  a  statutory  organization, 
his  service  therewith  cannot  be  credited  as  service  with  troops  within 
the  meaning  of  the  detached  service  law. 

W.  A.  Bethel, 
Actin-g  Judge  Advocate  General. 

(6-124.21,  J.  A.  G.,  Oct.  14,  1916.) 


DETACHED  SERVICE:   Officer  on  duty  with  Philippine  Scouts. 

The  question  was  presented  whether  an  officer  in  the  grade  of  cap- 
tain who  was  detailed  as  major  of  Philippine  Scouts  from  August  16, 
1911,  to  June  26,  1915,  could  be  credited  with  duty  with  troops  for 
that  period. 

Held.,  that  as  a  major  of  Philippine  Scouts  the  officer  commanded 
a  battalion  of  scouts  and  was  not,  therefore,  on  duty  "  with  a  troop, 
battery  or  company  of  that  branch  of  the  Army  "  in  which  he  held 
a  commission,  as  required  by  the  detached  service  Act  of  August  24, 
1912  (37  Stat.,  571),  the  said  act  of  1912  not  having  been  amended  by 
section  25  of  the  National  Defense  Act. 

(6-245,  J.  A.  G.,  Oct.  10,  1916.) 

93668°— 17 40 


626       DIGEST  OF  OPINIONS  OF   THE   JUDGE  ADVOCATE   GENERAL. 

ENLISTED  MEN:   Examinations  for  commission. 

A  former  officer  of  the  Philippine  Scouts,  29  years  of  age,  inquired 
whether  he  would  be  eligible,  upon  enlisting  in  the  Kegiilar  Army,  to 
take  the  examination  for  a  commission  under  that  portion  of  section 
24  of  the  National  Defense  Act  which  provides  that : 

"  Enlisted  men  of  the  Regular  Army  who  have  completed  one 
year's  service  with  an  organization  may  become  candidates  for  va- 
cancies in  the  grade  of  second  lieutenant  created  or  caused  by  the 
increases  due  to  the  operation  of  this  Act." 

Ileld^  that  the  service  as  an  officer  of  the  Philippine  Scouts  would 
confer  eligibility  within  the  meaning  of  the  statute  quoted,  upon  the 
reenlistment  of  the  man. 

(6-250,  J.  A.  G.,  Oct.  10,  1916.) 


ENLISTMENTS:  As  to  qualifications  of  Indians. 

The  question  was  presented  whether  an  Indian  who  was  reported 
as  "  qualified  except  educational  test "  could  legally  be  enlisted  in 
the  Regular  Army.  Section  2  of  the  Act  of  October  1,  1894  (28  Stat., 
216),  as  amended  by  section  4  of  the  Act  of  March  2,  1899  (30  Stat., 
978),  provides  that: 

"In  time  of  peace  no  person  (except  an  Indian)  who  is  not  a  citi- 
zen of  the  United  States,  or  who  has  not  made  legal  declaration  of  his 
intention  to  become  a  citizen  of  the  United  States,  or  who  cannot 
speak,  read,  and  write  the  English  language,  or  who  is  over  thirty- 
five  years  of  age,  shall  be  enlisted  for  the  first  enlistment  in  the 
Army." 

Held^  following  the  settled  administrative  construction  of  the 
statute  that  the  exception  as  to  Indians  occuring  in  the  clause  relat- 
ing to  citizenship  has  no  reference  to  the  subsequent  clauses  prescrib- 
ing educational  qualifications  and  age  limitation,  and  that  therefore 
the  educational  qualifications  for  the  first  enlistment  prescribed  in 
the  statute  are  requisite  in  respect  of  all  persons  enlisting  in  time  of 
peace,  including  Indians. 

(13-111.2,  J.  A.  G.,  Oct.  21,  1916.) 


NATIONAL    aiTARB:    After    call    for    Federal    service— powers    of    State 
authorities. 

The  question  was  presented  whether  the  State  authorities  may 
legally  transfer  enlisted  men  from  a  militia  or  national  guard  or- 
ganization after  such  organization  has  been  selected  for  Federal 
service  by  the  Governor  of  the  State  pursuant  to  the  call  of  the 
President. 

Held^  that  after  the  President's  call  is  transmitted  to  a  militia  or 
national  guard  organization  there  is  established  a  relation  between 
the  United  States  and  all  members  of  such  organization  and  a  duty 
imder  Federal  law  on  the  part  of  such  members  to  appear  for  muster, 
and  that  State  authorities  could  not  interpose  to  break  or  impair 
that  relation  or  to  relieve  the  members  of  their  duty  under  the  statute. 

(58-100,  J.  A.  G.,  Oct.  3,  1916.) 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       627 

NATIONAL  GUARD:  Ag'e  qualifications  for  enlistment. 

Questions  were  submitted  and  answered  as  follows: 

(a)  May  the  Department,  on  the  theory  of  re(iuiring  conformity 
in  such  respects  to  the  Regular  Army,  prescribe  35  as  the  maximum 
age  for  enlistment  in  the  National  Guard?  Aiis'wer:  No.  True, 
"the  qualifications  for  enlistment  shall  be  the  same  as  those  pre- 
scribed for  admission  to  the  Regular  Army"  (Sec.  79),  but  this  gen- 
eral provision  can  have  no  reference  to  a  qualification  elsewhere  spe- 
cifically prescribed,  as  is  the  age  limit.  The  National  Guard  age 
qualification  is  made  the  subject  of  specific  consideration  and  pro- 
vision in  sections  57  and  58  of  the  National  Defense  Act,  and  differs 
from  that  prescribed  for  the  Regular  Army. 

(b)  Must  an  enlisted  man  be  discharged  from  service  on  reaching 
45,  or  may  he  continue  to  serve  out  his  enlistment  ?  and 

(c)  If  he  may  serve  out  such  enlistment,  may  he  thereupon  be  re- 
enlisted?  Answer:  My  opinion  is  that  he  may  serve  out  his  enlist- 
ment and  may  thereupon  be  reenlisted,  if  otherwise  qualified.  The 
proviso  to  section  69  of  the  National  Defense  Act  puts  the  question 
beyond  doubt-  wherein  it  provides — 

"  That  in  the  National  Guard  the  privilege  of  continuing  in  active 
service  during  the  whole  of  an  enlistment  period  and  of  reenlisting 
in  said  service  shall  not  be  denied  by  reason  of  anytkiivg  contained 
in  this  Act." 

This  privilege  to  continue  in  active  service  for  the  whole  enlist- 
ment period  is,  by  the  terms  of  the  proviso,  as  available  in  an  enlist- 
ment period  containing  the  45th  year  as  in  any  other  enlistment.  See 
also  section  57,  same  act,  prescribing  the  composition  of  the  Militia, 
out  of  which  comes  the  National  Guard  (Sec.  58),  wherein  said  sec- 
tion 57  provides  that  the  Militia  is  composed  of  those  who  are  more 
than  18  years  of  age  and,  except  as  hereinafter  provided,  not  more 
than  45  years  of  age. 

(58-051,  J.  A.  G.,  Oct.  23,  1916.^ 


NATIONAL  GUARD:  As  to  effect  of  taking  Federal  oath. 

Upon  the  questions  (a)  whether  officers  who  have  taken  the  oath 
prescribed  by  section  73  of  the  National  Defense  Act  but  who  belong 
to  organizations  the  enlisted  men  of  which  have  not  taken  the  oath  pre- 
scribed by  section  70,  are  officers  of  the  National  Guard  within  the 
meaning  of  that  Act;  and  (h)  what  effect  will  the  taking  of  the  oath 
prescribed  in  section  70  of  the  National  Defense  Act  by  an  enlisted 
man  of  the  Organized  Militia  of  the  State  have  upon  his  enlistment 
in  the  Organized  Militia  under  the  law  of  his  State? 

Held,  as  to  (a)  that  an  officer  of  the  Organized  Militia  who  takes 
the  oath  prescribed  by  section  73  of  the  National  Defense  Act  be- 
comes an  officer  of  the  National  Guard  under  the  National  Defense 
Act,  that  there  may  be  a  recognition  of  an  individual  member  of  the 
National  Guard,  officer  or  enlisted  man,  separate  and  apart  from  the 
recognition  of  the  organization  to  which  he  belongs,  that  while  under 
the  provisions  of  section  110  pay  can  only  accrue  to  officers  and 
enlisted  men  belonging  to  recognized  organizations,  the  recognition 
of  an  officer  or  enlisted  man  separately  may  have  substantial  value, 


628       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

in  that  lie  thereby  becomes  qualified  for  appointment  to  office  in 
the  National  (xuard  under  section  74,  and  if  an  officer  between  the 
ages  of  21  and  27  years  becomes  eligible  for  appointment  as  second 
lieutenant  in  the  Regular  Army  under  section  24;  and  as  to  (b)  that 
the  taking  of  the  oath  prescribed  by  section  70  by  an  enlisted  man 
of  the  Organized  Militia  transforms  the  enlisted  man  of  the  Organ- 
ized Militia  into  a  member  of  the  National  Guard  and  substitutes 
a  new  enlistment  contract  for  his  former  State  enlistment  contract. 
(58-057,  J.  A.  G.,  Oct.  12,  1916.) 


NATION AXi  GrlJARD:   As  to   retention   of  officer  in  Federal   service  after 
muster-out  of  his  organization. 

In  the  case  of  a  National  Guard  officer  who  was  on  sick  leave 
request  was  made  for  authority  to  retain  him  in  the  Federal  service 
after  the  muster-out  of  his  organization,  until  his  complete  recovery 
from  his  ailment. 

Held,  that  while  the  retention  in  the  Federal  service  of  a  particular 
National  Guard  officer  may  be  authorized  for  a  short  period  after 
the  muster-out  of  his  organization,  to  enable  him  to  perform  any 
duty  pertaining  to  the  completion  of  the  records  of  his  organization, 
or  for  other  duty,  the  retention  of  such  an  officer  in  the  Federal 
service  after  the  muster-out  of  his  organization  solely  for  the  purpose 
of  permitting  him  to  draw  Federal  pay  would  not  be  legal. 

(58-160,  J.  A.  G.,  Oct.  6,  1916.) 


NATIONAIi  GUAB/D:  Furlough  of  enlisted  man  to  the  reserve. 

An  enlisted  man  of  the  National  Guard  upon  the  completion  of  his 
three-year  active  enlistment  period  desired  to  remain  in  the  active 
service  for  one  year  longer  and  then  be  furloughed  to  the  reserve. 
Section  69  of  the  National  Defense  Act  provides: 

"That  in  the  National  Guard  the  privilege  of  continuing  in  active 
service  during  the  whole  of  an  enlistment  period  and  of  reenlisting 
in  said  service  shall  not  be  denied  by  reason  of  anything  contained 
in  this  Act." 

Held,  that  the  sense  of  the  above  statutory  provision  is  that  an 
enlisted  man  of  the  National  Guard  who  elects  to  remain  in  service 
instead  of  being  furloughed  to  the  National  Guard  Reserve  at  the 
expiration  of  the  first  three-year  period  of  his  enlistment  must  make 
the  election  as  to  the  whole  of  his  enlistment  period,  and  that  the 
soldier  in  the  instant  case  could  not  elect  to  remain  in  the  active 
service  only  one  year  of  the  remaining  three  years  of  his  enlistment 
period. 

(58-214,  J.  A.  G.,  Oct.  16,  1916.) 


NATIONAL  GUARD:  Restoration  of  reservist  to  active  duty. 

The  question  was  presented  whether  a  national  guardsman  who 
passed  to  the  National  Guard  Reserve  while  his  organization  was  in 
the  actual  service  of  the  United  States  could,  upon  his  own  applica- 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       629 

tion,  be  restored  to  active  duty  with  his  regiment.  Section  78  of  the 
National  Defense  Act  provides  that: 

"A  National  Guard  Reserve  shall  be  organized  in  each  State,  Ter- 
ritory, and  the  District  of  Columbia,  and  shall  consist  of  such  organi- 
zations, officers,  and  enlisted  men  as  the  President  may  prescribcj  or 
members  thereof  may  be  assigned  as  reserves  to  an  active  organiza- 
tion of  the  National  Guard." 

Held^  that  until  an  organization  thereof  is  prescribed  by  the  Presi- 
dent the  National  Guard  Reserve  remains  an  unorganized  force, 
and  that  therefore  Avhen  a  soldier  passes  to  that  reserve  he  becomes 
one  of  a  class  of  militia  which  has  not  been  called  into  the  service 
of  the  United  States,  and  there  is  no  legal  authority  for  accepting 
him  into  the  Federal  service  until  his  class  is  called  into  the  service 
of  the  United  States  pui-suant  to  law. 

(58-100,  J.  A.  G.,  Oct.  2,  1916.) 


NATIONAL  GUABD:   Transportation  of  private  mounts  of   officers  mus- 
tered out. 

Held^  that  upon  the  muster  out  of  the  Federal  service  of  an  officer 
of  the  National  Guard  at  a  State  mobilization  camp  there  is  no 
authority  for  the  transportation  of  his  private  mounts  at  public 
expense  from  such  camp  to  the  officer's  home. 

(94-231,  J.  A.  G.,  Oct.  28,  1916.) 


PUBLIC  PROPERTY:  Sales  to  attendants  at  training  camps. 

Section  54  of  the  National  Defense  Act  providing  for  the  mainte- 
nance of  military  training  camps  authorizes  the  Secretary  of  War — 
"  to  sell  to  persons  receiving  instruction  at  said  camps,  for  cash  and 
at  cost  price  plus  ten  per  centum,  quartermaster  and  ordnance  prop- 
erty," required  for  their  proper  equipment. 

Held,  that  such  sales  are  authorized  only  to  persons  while  they  are 
in  actual  attendance  at  the  camps  "  receiving  instruction  "  thereat, 
and  that  there  is  no  authority  to  fill  orders  for  such  property  received 
from  former  attendants. 

(80-iai,  J.  A.  G.,  Oct.  12,  1916.) 


TRANSPORTATION:  Excess  passenger  baggage. 

An  officer  having  been  directed  by  the  War  Department  to  proceed 
at  once  from  San  Diego,  Cal.,  to  Fort  Sam  Houston,  Texas,  for  duty 
in  the  field  applied  to  the  local  quartermaster  for  the  transportation 
of  his  field  allowance  of  baggage.  The  quartermaster  issued  a  trans- 
portation request  for  its  shipment  as  excess  passenger  baggage  at  an 
expense  of  $13.18.  Inasmuch  as  this  method  of  shipment  was  un- 
authorized and  the  cost  not  payable  from  public  funds  (A.  R..  1122, 
1123,  and  20  Comp,  Dec,  182),  the  question  was  presented  whether 
the  officer  whose  baggage  was  thus  transported  or  the  quartermaster 
who  furnished  the  transportation  request  should  be  required  to  pay 
the  cost  of  the  shipment. 

Held,  that  mider  the  provisions  of  the  regulations  mentioned  the 
duty  of  the  quartermaster  was  clear;  that  the  other  officer  was 


630       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

entitled  to  have  his  baggage  shipped  without  expense  to  himself, 
and  that  as  the  (iiiartermaster  failed  to  make  the  shipment  m  accord- 
ance with  the  regulations  the  latter  should  be  required  to  pay  the  cost 
of  the  shipment. 

(94^232,  J.  A.  G.,  Oct.  17,  1916.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  oflace  of  the  Judge  Advocate  General.) 

ENLISTED  MEN:  Absence  due  to  misconduct. 

In  a  recent  case  involving  the  absence  of  an  enlisted  man  of  the 
Army  Schools  Detachment,  United  States  Military  Academy,  on  ac- 
count of  disease  resulting  from  his  own  misconduct,  the  question  was 
raised  whether  the  Act  of  April  27,  1914  (38  Stat.,  353),  applied  to 
enlistments  in  the  Military  Academy  detachment  entered  into  prior 
to  the  passage  of  that  act. 

Reld^  that  if  in  the  instant  case  the  soldier's  absence  from  duty 
was  on  account  of  disease  resulting  from  his  own  misconduct,  con- 
tracted after  the  date  of  the  above-mentioned  act,  pay  was  prop- 
erly deducted  and  should  not  be  refunded. 

Note. — In  explaining  and  amplifying  former  decisions  the  Comp- 
troller said: 

"In  the  decision  of  January  30,  1913  (19  Comp.  Dec,  483),  con- 
struing the  act  of  August  24,  1912,  it  was  held  that  if  a  soldier  is 
absent  from  duty  on  account  of  disease  resulting  from  his  own  mis- 
conduct contracted  in  the  enlistment  in  which  he  was  then  serving, 
but  prior  to  the  passage  of  the  act  of  August  24,  1912,  no  deduction 
of  pay  should  be  made,  but  if  the  absence  was  on  account  of  a  dis- 
ease contracted  in  such  enlistment  after  August  24,  1912,  the  deduc- 
tion should  be  made.  Such  has  been  understood  in  this  office  to  be 
the  effect  of  the  decision  of  January  30,  1913.  (See  also  20  Comp. 
Dec,  348.) 

"  The  act  of  August  24,  1912,  did  not  apply  to  the  military  acad- 
emy detachment  because  said  detachment  was  not  paid  from  the 
Army  appropriation  for  pay  of  the  Army.  The  act  of  April  27, 
1914,  is  applicable  to  such  organization.  As  the  act  of  April  27, 
1914,  is  the  same  in  all  material  respects  as  the  act  of  August  24, 
1912,  the  principle  of  the  decision  of  January  30,  1913,  applies 
equally  under  the  act  of  April  27,  1914." 

(Comp.  Treas.,  Oct.  2,  1916.) 


CLAIMS:  Loss  or  damage  to  personal  baggage. 

Held.,  that  where  the  evidence  submitted  to  the  accounting  officers 
of  the  Treasury  in  support  of  a  claim  for  reimbursement  under,  and 
subject  to  the  limitations  of,  the  Act  of  March  3,  1885  (as  extended 
by  the  Act  of  March  4,  1915),  for  personal  baggage  of  an  officer  or 
enlisted  man  of  the  Army  lost  or  damaged  in  changing  station,  estab- 
lishes that  such  loss  or  damage  was  incurred  in  transit  and  through 
no  fault  or  negligence  of  the  owner,  such  reimbursement  is  author- 
ized under  that  act. 

(Comp.  Treas.,  Sept.  29,  1916.) 


DIGEST  OP  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       631 

CIVILIAN  EMPLOYEES:  Expenses  for  meals  at  home  station. 

Certain  civilian  employees  of  the  Engineer  Corps  claimed  reim- 
bursement of  the  amount  expended  for  meals  at  their  home  station 
when  it  was  impracticable  or  inconvenient  for  them  to  go  to  their 
regular  eating  places. 

Held,  that  it  was  an  incident  or  condition  of  service  in  which  the 
employees  were  engaged  that  they  could  not  at  all  times  be  near  their 
regular  boarding  places  at  meal  time,  and  that  reimbursement  for 
such  personal  expenses  as  meals  would  be  in  the  nature  of  additional 
com])ensation  and  as  such  prohibited  under  section  1765,  Kevised 
Statutes. 

(Coinp.  Treas.,  Aug.  11,  1916.) 


COMMUTATION  OF  QUARTERS :  Enlisted  man  on  temporary  duty  away 
from  his  regular  station. 

ENLISTED  MEN:  Absence  due  to  misconduct. 

A  quartermaster  sergeant,  whose  permanent  station  was  at  the 
office  of  the  Depot  Quartermaster,  Seattle,  Wash.,  was  sent  to  Fort 
Worden,  Wash.,  for  temporary  duty  where  he  remained  on  duty 
from  July  12  to  August  22,  1916.  While  on  such  temporary  duty 
he  was  attached  to  the  Quartermaster  Corps  detachment  at  Fort 
Worden  for  rations  and  was  quartered  with  the  detachment  in  the 
detachment  qiuirters,  which  were  in  the  corral  over  the  wagon  shed. 
During  such  temporary  absence  he  continued  to  rent  quarters  at  his 
regular  station  and  claimed  the  right  to  receive  commutation 
therefor. 

Held,  that,  it  appearing  that  the  soldier  was  furnished  with  quar- 
ters in  kind  with  the  detachment  to  which  he  was  attached  while  on 
temporary  duty  and  that  the  quarters  so  furnished  were  of  the  same 
kind  or  character  as  the  other  members  of  the  detachment  received, 
he  was  not  entitled  to  quarters  or  commutation  of  quarters  else- 
where, and  that  his  claim  could  not  legally  be  allowed. 

(Comp.  Treas.,  Oct.  19,  1916.) 


CONTINUOUS  SERVICE  PAY:  Enlisted  men. 

Held,  that  an  enlisted  man  who  is  discharged  from  the  Regular 
Army  to  accept  a  commission  in  the  officers'  reserve  corps  of  the 
Regular  Army,  and  who  remains  in  service  in  said  corps  more  than 
three  months  loses  his  right  to  credit  for  continuous-service  pay  as 
an  enlisted  man  of  the  Regular  Army. 

(Comp.  Treas.,  Sept.  28,  1916.) 


MILEAGE:  Retired  officer  serving  as  witness. 

Held,  that  a  retired  officer  of  the  Army  who  serves  as  a  witness  be- 
fore a  court-martial  is  entitled,  for  travel  performed  in  going  to  and 
returning  from  the  court,  only  to  the  mileage  provided  for  civilian 
witnesses  in  such  cases,  and  not  to  the  mileage  provided  for  officers 
of  the  Army  traveling  under  competent  orders,  without  troops,  al- 
though he  was  expressly  ordered  by  the  Secretary  of  War  to  appear 
as  a  witness  before  the  court-martial. 

(Comp.  Treas.,  Sept.  28,  1916.) 


632       DIGEST  OP  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

NATIONAL  GUARD :    Payment  of  recruits  between  date  of  enlistment  and 
date  of  muster-in  or  rejection. 

In  the  case  of  National  Guard  recruits  for  the  Federal  service  en- 
listed after  the  President's  call  of  June  18,  11)16,  the  question  Avas 
presented  whether  men  recruited  for  the  purpose  of  bringing  the 
organizations  up  to  the  maxiTmim  strength  were  entitled  to  be  paid 
from  the  date  of  their  enlistment  to  the  date  of  their  muster-in,  or  to 
the  date  of  their  rejection  after  physical  examination.  As  to  enlist- 
ments to  bring  the  organizations  up  to  the  required  miniTnum. 
strength  for  Federal  service,  the  Army  Appropriation  Act  of  August 
29,  1910  (Public  No.  242,  p.  6),  provides  for  payment. 

Held,  that  in  the  case  of  enlisted  men  recruited  for  the  purpose  of 
bringing  a  National  Guard  organization  up  to  the  maximum  strength, 
who  are  mustered  in,  payment  may  be  made  from  the  date  of  enlist- 
ment to  the  date  of  muster-in,  but  that  in  the  case  of  those  similarly 
enlisted  who  are  rejected,  after  physical  examination,  there  is  no 
authority  for  their  payment  from  Federal  funds  for  the  time  between 
the  date  of  enlis-tment  and  the  date  of  rejection. 

(Comp.  Treas.,  Sept.  30,  1916.) 


BULLETIN  57. 

Bulletin  1  WAR  DEPARTMENT, 

No.  57.    J  Washington,  December  ££,  1916. 

The  following  digest  of  the  opinions  of  the  Judge  Advocate  Gen- 
eral of  the  Army  for  the  month  of  November,  1916,  and  of  certain 
decisions  of  the  Comptroller  of  the  Treasury,  is  published  for  the  in- 
formation of  the  service  in  general. 
[2506586,  A.  G.  O.] 
By  order  or  the  Secretary  of  War  : 

H.  L.  SCOTT, 
Major  General^  Chief  of  Staff. 
OrnciAL : 

H.  P.  McCAIN, 

Th£  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

APPOINTMENT  OF  OFFICERS:  Age  limitations  for  examination  and  ap- 
pointment of  civilians. 

The  law  governing  the  appointment  of  second  lieutenants  of  En- 
gineers from  civil  life  is  found  in  section  24,  National  Defense  Act, 
and  section  5  of  the  Act  of  February  27,  1911  (36  Stat.,  957),  which 
requires  that — 

"  To  become  eligible  for  examination  and  appointment,  a  civilian 
candidate  for  appointment  as  second  lieutenant  must  be  *  *  * 
between  the  ages  of  21  and  29     *     *     *." 

Held,  that  both  the  examination  and  the  appointment  must  come 
within  the  age  limits  specified  by  the  statute,  and  that  an  applicant 
who  failed  in  an  examination  was  not  eligible  for  a  reexamination 
and  appointment  after  he  had  passed  the  maximum  age  limit. 

(64-210.2,  J.  A.  G.,  Nov.  17,  1916.) 


APPOINTMENT  OF  OFFICERS:    Competitive  examination  of  enlisted  man 
delayed  through,  error  of  military  authorities. 

An  enlisted  man  was  prepared  for  and  entitled  to  compete  in  an 
examination  for  a  commission  held  in  August,  1916,  but  was  pre- 
vented from  taking  that  examination  through  an  error  of  the  military 
authorities  in  transmitting  his  notice  to  the  wrong  address,  resulting 
in  his  having  to  wait  until  October  for  his  examination. 

Held,  that  upon  his  being  found  qualified  in  the  latter  examina- 
tion, the  soldier  was  entitled  to  be  rated  with  the  candidates  who  were 
found  qualified  in  the  August  examination,  and  was  entitled  to  place 
in  line  for  appointment  under  section  24,  National  Defense  Act, 
ahead  of  those  candidates  qualifying  in  the  October  examination — 
the  delay  in  his  examination  being  due  to  no  fault  on  his  part. 

^64-212,  J.  A.  G.,  Nov.  10,  1916.) 

633 


634       DIGEST  OF  OPINIONS  OF   THE   JUDGE   ADVOCATE   GENERAL. 

APPOINTMENT  OF  OFFICERS:  Examinations  for  commission. 

An  officer  of  the  Philippine  Scouts  competed  in  an  examination 
given  for  enlisted  men  for  commissions.  He  had  not  completed  one 
year's  service  in  the  Scouts,  but  relied  upon  his  service  of  four  years 
in  the  Marine  Corps  as  qualifying  him  as  a  candidate  for  a  commis- 
sion under  section  24  of  the  National  Defense  Act,  which  provides 
that  officers  of  the  Philippine  Scouts  shall  be  eligible  for  commission 
under  the  same  conditions  as  enlisted  men,  and  further  declares 
that— 

"  Enlisted  men  of  the  Regular  Army  who  have  completed  one 
year's  service  with  an  organization  may  become  candidates  for  va- 
cancies in  the  grade  of  second  lieutenant  created  or  caused  by  the  in- 
creases due  to  the  operation  of  this  Act." 

Held.,  that  the  statute  contemplates  one  year's  service  in  the  Army 
and  that  the  officer  of  the  Philippine  Scouts  was  not  qualified  by 
reason  of  his  service  in  the  Marine  Corps. 

(64-213.5,  J.  A.  a,  Nov.  8,  1916.) 


ENLISTED  MEN:  Clothing  allowance. 

The  commanding  officer  of  a  National  Guard  organization  called 
attention  to  a  case  in  which  an  enlisted  man  had  been  discharged  on 
account  of  disability  after  only  ten  days'  service.  There  had  been 
issued  to  him  $30  worth  of  clothing,  and  he  had  no  other  clothes  nor 
any  money.  The  pay  due  him  was  only  $5.  The  officer  inquired: 
"  What  must  the  officer  who  is  responsible  for  the  clothing  do  in 
such  a  case  ?  " 

Held.,  that  the  title  to  clothing  issued  to  enlisted  men  either  in 
the  Regular  Army  or  in  the  National  Guard  remains  in  the  United 
States,  and  that  in  the  instant  case  the  clothing  issued  against  the 
soldier's  initial  allowance  should  be  retained  in  the  possession  of  the 
Government  by  the  responsible  officer,  except  only  such  clothing  as 
would  be  necessary  for  the  soldier  to  wear  home. 

(72-420.2,  J.  A.'G.,  Nov.  11,  1916.) 


DETACHED  OFFICERS'  LIST:  Details  therefrom. 

The  second  proviso  of  section  25,  National  Defense  Act,  provides 
that  no  officer  shall  be  permitted  to  remain  on  the  Detached  Officers' 
List  who  has  not  been  on  duty  with  troops  as  therein  prescribed,  and 
further  declares  that,  "  except  as  before  prescribed  in  this  proviso,  all 
officers  who  shall  have  been  assigned  to  said  list  shall  remain  thereon 
for  not  less  than  four  years  from  the  respective  dates  of  their  assign- 
ment thereto,  unless  in  the  meantime  they  shall  have  been  separated 
entirely  from  the  Army,  or  shall  have  been  promoted  or  appointed  to 
higher  offices,  or  shall  have  been  retired  from  active  service." 

Held.,  that  while  an  officer's  name  must  be  removed  from  the  De- 
tached Officers'  List  when  he  has  not  had  certain  service  with  troops, 
it  cannot  otherwise  be  removed  from  that  list  (except  on  account  of 
retirement,  separation  from  service,  etc.,)  until  it  has  been  thereon 
for  at  least  four  years;  therefore  an  officer's  name  may  not  be  re- 
moved from  the  Detached  Officers'  List  for  the  purpose  of  detailing 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       635 

him  to  the  General  Staff  Corps  for  the  reason  that  while  officers  may, 
pursuant  to  various  provisions  of  law,  be  transferred  from  one  posi- 
tion to  another,  as  from  line  to  staff  and  vice  versa,  or  from  line  to 
Detached  Officers'  List  and  vice  versa,  it  is  clear  that  one  officer 
may  not  hold  two  positions  at  the  same  time,  thus:  An  officer  may 
not  occupy  a  position  in  the  line  and  one  in  the  staff  at  the  same 
time;  neither  may  he  occupy  a  position  on  the  Detached  Officers' 
List  and  one  in  the  staff  or  line  at  the  same  time. 
(6-245,  J.  A.  G.,  Nov.  6,  1916.) 


ENIilSTKD  MEN:  Discharg'es  for  convenience  of  the  Government. 

In  the  case  of  a  soldier  discharged  from  an  enlistment  in  which  he 
had  served  more  than  two  years  to  enable  him  to  accept  a  commission, 
and  Avho  reenlisted  within  three  months,  the  question  of  what  enlist- 
ment period  he  was  then  serving  in  turned  upon  the  point  w^iether 
the  discharge  was  for  the  convenience  of  the  Government.  (Act  of 
May  11,  1908,  35  Stat,  109.) 

Held^  that  the  discharge  of  an  enlisted  man  to  enable  him  to  ac- 
cept a  commission  is  a  discharge  for  the  convenience  of  the  Govern- 
ment. 

(34-225,  J.  A.  G.,  Nov.  17,  1916.) 


ENLISTED  MEIT:  Pay  of  private,  Medical  Department. 

A  private  of  the  Medical  Department  serving  an  enlistment  en- 
tered into  prior  to  the  passage  of  the  National  Defense  Act,  and  hence 
entitled  to  the  old  rate  of  $16  per  month,  was  promoted  to  private, 
first  class,  but  was  later  reduced  to  the  grade  of  private.  The  ques- 
tion was  presented  whether  he  should  be  paid  $15  a  month,  the  new 
rate  for  the  grade  of  private.  Medical  Department  (Sec.  28,  National 
Defense  Act) ,  or  whether  he  was  entitled  to  resume  the  $16  rate. 

Held,  that  the  saving  clause  at  the  end  of  section  28,  National  De- 
fense Act,  operates  to  continue  the  pay  of  the  grade  of  private.  Hos- 
pital Corps,  for  the  benefit  of  enlisted  men  during  the  remainder  of 
their  enlistments  existing  June  3,  1916,  and  that,  therefore,  the 
soldier,  upon  his  reduction  to  the  grade  of  private,  was  entitled  to 
the  old  rate  of  $16  per  month. 

(72-200,  J.  A.  G.,  Nov.  14,  1916.) 


NATIONAL  GUARD:  Grade  and  pay  of  chaplains. 

Section  1  of  the  Act  of  April  21,  1904  (33  Stat.,  226),  provides 
that  "  all  persons  who  may  hereafter  be  appointed  as  chaplains  shall 
have  the  grade,  pay,  and  allowances  of  first  lieutenant,  mounted, 
until  they  shall  have  completed  seven  years  of  service,"  and  further 
that  "  chaplains  shall  have  the  grade,  pay,  and  allowance  of  captain, 
mounted,  after  they  shall  have  completeQ  seven  years  of  service." 

Held,  that  chaplains  of  the  National  Guard  having  had  seven 
years  of  continuous  service  as  chaplains  immediately  prior  to  being 


636       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

mustered  into  the  service  of  the  United  States  or  who  may  complete 
seven  years  of  service  after  being  mustered  into  the  Federal  service, 
are  entitled  to  the  pay  and  allowances  of  captain  by  virtue  of  their 
service,  and  no  act  of  the  appointing  power  is  required. 

Held  further^  that  chaplains  of  the  National  Guard  may  be  recog- 
nized as  chaplains  in  the  grade  of  major  after  they  have  been  ap- 
pointed to  that  grade  by  the  governors  of  their  respective  states  after 
having  had  the  requisite  service  for  ten  years  in  the  grade  of  cap- 
tain— but  not  otherwise. 

(58-rOO,  J.  A.  a,  Nov.  2,  1916.) 


NATIONAL  GUARD :  Pay  of  organizations  below  the  minimum  strength 
when  called  into  the  Federal  service. 

In  a  National  Guard  Regiment  that  was  embraced  in  the  Presi- 
dent's call  for  Federal  service  there  were  a  number  of  companies 
from  whom  the  War  Department  had  withdrawn  recognition  because 
they  were  not  maintained  up  to  the  required  standard  of  strength. 
On  the  question  whether  the  members  of  such  companies  responding 
to  the  President's  call  were  entitled  to  pay  from  the  time  they  re- 
ported at  their  company  rendezvous, 

Held,  that  the  withdrawal  or  withholding  of  the  Department's 
recognition  of  a  Militia  organization  operates  to  deprive  such  or- 
ganization of  the  right  to  participate  in  the  Federal  appropriations 
but  does  not  operate  to  discharge  the  members  of  such  organization 
from  their  obligation  under  their  oath  and  contract  of  enlistment 
to  respond  to  the  President's  call  for  Federal  service,  and  that  they 
are  entitled  to  Federal  pay  as  provided  by  statute  from  the  time  they 
report  at  their  company  rendezvous;  and  this  applies  also  to  those 
who  may  later,  upon  examination,  be  found  physically  unfit  for 
service  and  are  discharged. 

(58-201,  J.  A.  G.,  Nov.  29,  1916.) 


NATIONAL  GUARD:  Transportation  of  officers'  authorized  private  mounts. 

National  Guard  officers  called  into  the  active  service  of  the  United 
States  authorized  to  be  mounted  are  entitled  to  have  their  authorized 
private  mounts  transported  from  the  home  rendezvous  to  the  mobili- 
zation camp  at  public  expense,  the  cost  being  payable  from  the 
appropriation  for  the  transportation  of  the  Army  and  its  supplies. 

(94-061,  J.  A.  G.,  Nov.  23,  1916.) 

Upon  the  muster-out  of  the  Federal  service  of  such  officers  the 
transportation  of  their  horses  from  the  place  of  muster-out  to  their 
home  rendezvous  is  not  authorized,  this  conclusion  being  based  upon 
the  provision  of  A.  R.  1098  against  the  shipment  of  an  officer's 
mounts  after  his  separation  from  the  active  service. 

(94-061,  J.  A.  G.,  Oct.  28,  1916.) 


OFFICERS:  Relative  rank. 

Section  1219,  Revised  Statutes,  provides  that  in  fixing  relative 
rank  between  officers  of  the  same  grade  and  date  of  appointment 
and  commission,  the  time  which  each  may  have  actually  served  as  a 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       637 

commissioned  officer  of  the  United  States,  whether  continuously  or 
at  different  periods,  shall  be  taken  into  account;  and  section  24,  Na- 
tional Defense  Act,  contains  the  provision  that  officers  appointed  to 
original  vacancies  in  the  grade  of  second  lieutenant  created  or  caused 
by  that  Act,  "  shall  take  lineal  and  relative  rank  according  to  dates 
of  appointment,  and  the  lineal  and  relative  rank  of  second  lieutenants 
appointed  on  the  same  date  shall  be  determined  under  such  regula- 
tions as  the  Secretary  of  War  may  prescribe,     *     *     *  " 

Held^  that  the  former  statute  was  not  modified  by  the  latter  pro- 
vision and  that  the  persons  appointed  provisional  second  lieutenants 
to  fill  vacancies  created  or  caused  by  the  Act  of  June  3,  191G,  and 
who  have  had  commissioned  service  in  the  National  Guard  in  the 
service  of  the  United  States  or  in  the  Philippine  Scouts  are  entitled, 
under  section  1219,  Revised  Statutes,  to  have  the  time  so  served  as 
commissioned  officers  taken  into  account  in  fixing  their  relative  and 
lineal  rank. 

Held  further^  that  the  benefit  of  former  commissioned  service  un- 
der section  1219  of  the  Revised  Statutes  is  effective  only  within  the 
class  from  which  the  appointee  is  selected,  since  section  24  creates 
an  order  of  preference  in  which  appointments  are  made  which  is  not 
disturbed  by  the  provisions  of  section  1219,  Rev.  Stat. 

(64-200,  J.  A.  G.,  Nov.  16,  1916.) 


OFPICERS'    RESERVE   CORPS:   Appointment   of  members    on    examining 
boards. 

In  the  rules  prescribed  for  examinations  for  appointments  in  the 
Officers'  Reserve  Corps  (G.  O.  32,  ^N.  D.,  1916,  p.  10)  it  is  directed, 
with  reference  to  the  composition  of  examining  boards,  that — 

"  The  members  of  these  boards  will  be  appointed  from  the  Regular 
Army  or  fi-om  the  Regular  Army  and  the  Officers'  Reserve  Corps." 

Held^  that  the  provision  for  the  appointment  of  members  of  the 
Officers'  Reserve  Corps  on  such  boards  applies  only  to  officers  who 
have  been  called  into  the  active  service,  as  there  is  no  authority  of 
law  for  so  utilizing  the  services  of  members  of  the  Officers'  Reserve 
Corps  who  have  not  been  called  into  active  service  for  other  pur- 
poses in  accordance  M'ith  law. 

(76-030,  J.  A.  G.,  Nov.  14,  1916.) 


PUBLIC  PROPERTY:   XTse  of  for  private  purposes. 

The  master  of  a  quartermaster  steamer,  by  permission  of  the  local 
post  commander,  employed  the  vessel  for  commercial  use  as  a  tug, 
charging  for  the  services  of  towing  commercial  vessels  on  twelve 
occasions  enough  to  cover  expenses  for  coal,  oil,  etc.  Gratuities  also 
were  accepted  aggregating  $605,  and  "  equitably  divided  among  the 
members  of  the  crew." 

Held^  that  in  the  absence  of  a  real  emergency,  the  commercial  use 
of  the  tug  was  improper  and  in  violation  of  law  and  regulations 
and  the  officer  was  subject  to  censure;  and  further  that  if  the  occa- 
sion on  which  the  use  of  the  vessel  was  permitted  by  him  could  be 
regarded  as  one  of  emergency,  "  he  would  be  censurable  for  allowing 


638       DIGEST  OF  OPINIONS  OF  THE   JUDGE  ADVOCATE   GENERAL. 

this  use  to  continue  for  a  period  of  over  two  months  without  report- 
ing the  facts  to  his  superior  officers." 

Held  furtJier,  that  the  officer  shoukl  be  required  to  deposit  to  the 
credit  of  misceUaneous  receipts  the  funds  received  by  the  master  for 
these  serA'ices  and  divided  among  the  crew,  he  being  allowed  to  col- 
lect from  the  crew,  as  far  as  practicable,  the  amounts  they  respec- 
tively received  for  the  services  rendered  by  the  steamer. 

(78-100,  J.  A.  G.,  Nov.  15,  1916.) 


SEAMEN:  General  laws  applicable  to  members  of  Army  transport  crews. 

Section  11  of  the  Act  of  March  4,  1915  (38  Stat.,  1168),  provides 
that  "  it  shall  be  lawful  for  any  seaman  to  stipulate  in  his  shipping 
agreement  for  an  allotment  of  any  portion  of  the  wages  he  may  earn 
to  his  grandparents,  parents,  wife,  sister,  or  children."' 

Held,  that  it  being  settled  that  members  of  the  crew  of  an  Army 
transport,  who  are  civilian  employees,  are  subject  to  the  restrictions 
and  entitled  to  the  benefits  of  the  same  laws  as  merchant  seamen,  it 
follows  that  they  are  entitled  to  the  benefits  of  the  above  mentioned 
Act. 

(94-124,  J.  A.  G.,  Nov.  21,  1916.) 


TRANSPORTATION:  Ofl&cers'  change  of  station  baggage  allowance. 

A  first  lieutenant  whose  regular  station  was  at  San  Francisco  was 
sent  to  the  border  for  duty  and  furnished  25%  of  his  baggage  trans- 
portation allowance.  He  was  subsequently  promoted  to  captain  and 
assigned  to  a  new  regiment  regularly  stationed  at  El  Paso. 

Held^  that  the  assignment  of  the  officer  to  the  new  regiment  oper- 
ated to  change  his  permanent  station  from  San  Francisco  to  El  Paso, 
and  that  he  became  entitled  to  the  permanent  change  of  station 
allowance  of  baggage  of  the  grade  held  by  him  on  the  date  of  his 
actual  change  to  the  new  command,  subject  to  a  deduction  of  the 
number  of  pounds  already  shipped  under  the  25%  allowance  to 
officers  on  temporary  duty. 

(94-232,  J.  A.  G.,  Nov.  15,  1916.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

APPROPRIATIONS:  Expenses  for  abstract  of  title. 

The  expenses  incurred  in  the  preparation  of  an  abstract  of  title  to 
land  about  to  be  acquired  by  the  United  States,  when  such  abstract 
was  procured  for  use  in  contemplated  purchase  of  the  land,  and  not 
for  use  in  condemnation  proceedings,  should  be  paid  from  the  ap- 
propriation used  for  the  purchase  of  the  land,  regardless  of  the  fact 
that  said  abstract  may  ultimately  be  used  in  condemnation  pro- 
ceedings. 

(Comp.  Treas.,  Oct.  28,  1916.) 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       639 

TRANSPORTATION:  Charge  for  special  services  rendered  by  transporta- 
tion company. 

In  connection  with  the  transportation  by  the  Government  of  horses 
from  Washington,  D.  C,  to  St.  Louis,  Mo.,  the  raih'oad  company  put 
in  a  bill  for  $3  for  feed,  unloading,  loading,  and  switching  at  St, 
Louis,  submitting  with  the  bill  an  order  of  the  attendant  accom- 
panying the  horses  requiring  such  service. 

Held^  that  the  service  having  been  rendered  in  accordance  with 
the  orders  of  the  attendant,  the  charges  should  be  paid. 

(Comp.  Treas.j  Dec.  1,  1916.) 


BULLETIN  3. 


Bulletin  1  WAR  DEPARTMENT, 

ji^o.  3.     J  Washington,  January  19,  1917. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army   for  the  month   of  December,   1916,   and   of   certain 
decisions  of  the  Comptroller  of  the  Treasury,  is  published  for  the 
information  of  the  service  in  general. 
[2520529,  A.  G.  O.] 
By  order  of  the  Secretary  or  War: 

H.  L.  SCOTT, 
Major  General^  Chief  of  Staff. 

Official  : 

H.  P.  McCAIN, 

The  Adjutant  General. 


OPINIONS  OE  THE  JUDGE  ADVOCATE  GENERAL. 

CONFIXEMENT:   Time    awaiting    trial    and    result,    for    desertion,    not 
counted  on  restoration  towards  completion  of  enlistment. 

The  48th  Article  of  War  provides  that : 

"  Every  soldier  who  deserts  the  service  of  the  United  States  shall 
be  liable  to  serve  for  such  period  as  shall,  with  the  time  he  may  have 
served  previous  to  his  desertion,  amount  to  the  full  term  of  his 
enUstment;     *     *     *" 

The  matter  of  the  completion  of  an  enlistment  entered  into  prior 
to  April  27,  1914,  in  the  case  of  a  convicted  deserter  restored  to  duty, 
is  governed  by  the  48th  Article  of  War,  as  interpreted  by  Paragraph 
130,  Army  Regulations,  which  means  that  the  time  spent  in  confine- 
ment awaiting  trial  and  serving  sentence  for  desertion  will  not  count 
toward  the  completion  of  the  enlistment.  This  construction  is  in 
line  with  the  general  provisions  contained  in  the  Act  of  April  27, 
1914  (38  Stat.,  353),  requiring  that  an  enlistment  (entered  into  on 
and  after  that  date)  shall  not  be  regarded  as  complete  until  the  sol- 
dier shall  have  made  good  any  time  in  excess  of  one  day  lost  by 
unauthorized  absence,  or  on  account  of  disease  resulting  from  his 
own  intemperate  use  of  drugs  or  alcoholic  liquors  or  other  miscon- 
duct, &)'  whUe  in  confnernent  awaiting  tricbl,  or  disposition  of  his  case 
if  the  trial  results  in  conviction,  or  while  in  confinement  under  sen- 

(34-052,  J.  A.  G.,  Dec.  27,  1916.) 


DETACHED  SERVICE:  Officer  on  duty  as  Squadron  Adjutant. 

Having  reference  to  his   detached   service  status,   an   officer  in- 
quired "  whether  or  not,  under  the  National  Defense  Act  of  June  3, 
1916,  a  Squadron  Adjutant  is  to  be  given  duty  status  while  holding 
640 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       641 

that  office,  presuming  he  is  present  for  duty  with  his  regiment  and 
exercises  the  functions  of  his  office." 

Field,  that  the  detached  service  laws  were  not  amended  or  qualified 
by  the  National  Defense  Act  (Bui.  47,  W.  D.,  1916,  p.  6),  and  that, 
therefore,  answer  to  the  question  is  found  in  the  Department's  deci- 
sion of  June  15,  1916  (Bui.  26,  W.  D.,  1915,  p.  3),  that  duty  as  a 
Squadron  Adjutant  is  a  detail  on  detached  service  within  the  mean- 
ing of  the  Act  of  August  24,  1912. 

(6-124.23,  J.  A.  G.,  Dec.  18,  1916.) 


DETACHED  SERVICE:  Regimental  Adjutants,  Field  Artillery. 

The  question  was  presented  whether  a  regimental  adjutant  of  Field 
Artillery  is  to  be  deemed  present  for  duty  with  a  troop,  battery,  or 
company,  within  the  meaning  of  the  Detached  Service  Act  of  Aug. 
24,  1912. 

Ileld^  as  follows:  As  to  a  regiment  of  infantry,  it  has  been  held 
that  the  adjutant  thereof  is  on  duty  "  with  a  troop,  battery  or  com- 
pany "  within  the  purview  of  the  detached  service  law,  because  he 
is  in  command  of  the  headquarters  company  (Bui.  39,  W.  D.,  1916, 
p.  12).  While  the  National  Defense  Act  provides  that  a  regimental 
adjutant  of  Infantry  or  Cavali-y  shall  command  the  headquarters 
company  or  headquarters  troop,  as  the  case  may  be,  this  is  not  so  as  to 
the  adjutant  of  a  Field  Artillery  regiment.  He  does  not  command 
the  headquarters  company,  the  supply  company,  nor  any  battery  in 
the  regiment,  other  captains  having  been  provided  as  component 
parts  of  those  organizations  for  that  purpose.  (Sec.  19,  National 
Defense  Act.)  A  regimental  adjutant  of  Field  Artillery  is,  there- 
fore, an  additional  officer,  and  he  is  not,  so  long  as  he  occupies  his 
normal  status  as  adjutant,  on  duty  with  a  troop,  battery,  or  company, 
within  the  meaning  of  the  detached  service  act  of  1912. 

(6-124.23,  J.  A.  a,  Dec.  18,  1916.) 


EIGHT-HOUR  LAW:  Purchase  of  flying  machines. 

On  complaint  that  a  manufacturing  company,  in  the  execution  of 
their  contract  with  the  United  States  Goveriiment  for  flying  ma- 
chines, required  of  their  mechanics,  in  violation  of  the  eight-hour 
law,  more  than  eight  hours'  labor  per  day. 

Held,  that  as  the  Eight-Hour  Act  of  June  19,  1912  (37  Stat.,  137), 
expressly  excepts  from  its  operation  "  contracts  *  *  *  for  such 
materials  or  articles  as  may  usually  be  bought  in  open  market,  except 
armor  and  armor  plate,  whether  made  to  conform  to  particular 
specifications  or  not,"  etc.,  and  as  the  contract  in  question  to  cover 
purchase  is  an  agreement  to  deliver  completed  articles  of  manufac- 
turers' make,  rather  than  an  agreement  for  their  construction,  it 
being  a  matter  of  public  knowledge  that  flying  machines  are  articles 
which  are  manufactured  for  sale  and  may  be  purchased  in  open 
market ;  a  contract  for  such  machines,  although  requiring  the  partic- 
ular machines  to  conform  in  certain  particulars  to  Signal  Corps 
specifications,  is  not  within  the  operation  of  the  eigth-hour  law. 

(32-313,  J.  A.  G.,  Dec.  29,  1916.) 
93668°— 17 il 


642       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ENLISTED  MEN:  Detail  of  noncommissioned  officers  for  service  in  the 
National  Guard. 

Section  36  of  the  National  Defense  Act  authorizes  the  detail  of  not 
to  exceed  1,000  sergeants  as  instructors  of  the  National  Guard,  and 
100  sergeants  as  instructors  of  organizations  at  the  U.  S.  Discipli- 
nary Barracks,  and  provides  that  they  "shall  be  additional  to  the 
sergeants  authorized  by  this  Act  for  the  corps,  companies,  troops, 
and  detachments  from  which  they  may  be  detailed." 

Held.,  that  the  statute  only  authorizes  additional  sergeants^  and  that 
while  it  may  be  advisable  and  permissible  at  times  to  detail  sergeants, 
first  class,  to  duty  as  instructors  (Bui.  28,  W.  D.,  1916,  p.  9),  such  an 
assignment  can  not  operate  to  increase  the  authorized  number  of 
sergeants,  first  class,  which  is  fixed  by  law. 

(6-156,  J.  A.  G.,  Dec.  20, 1916.) 


ENLISTED  MEN:  Engaging  in  civil  entployments. 

In  the  case  of  an  enlisted  man  who  was  granted  a  furlough  under 
authority  of  regulations  to  extend  to  the  date  of  his  retirement,  com- 
plaint was  made  that  during  such  period  of  furlough  the  soldier  was 
engaging  in  business,  in  violation  of  Section  35  of  the  National  De- 
fense Act. 

Held^  that  while  an  enlisted  man  on  leave  of  absence  or  ordinary 
furlough  is  unquestionably  to  be  deemed  in  active  service  within  the 
meaning  of  this  term  as  used  in  the  statute  mentioned,  it  would  go 
beyond  the  primary  purpose  of  the  law  to  apply  it  to  a  case  like 
this  where  the  furlough  has  been  granted  to  an  enlisted  man  under 
authority  of  regulations  to  extend  to  the  date  of  his  retirement,  it 
not  being  within  the  contemplation  of  the  authorties  granting  the 
furlough  that  he  will  ever  resume  active  duty,  and  that,  therefore, 
in  such  cases  the  soldier  may  accept  employment  or  engage  in  busi- 
ness without  reference  to  the  provisions  of  Section  35  of  the  National 
Defense  Act. 

(6-153.4,  J.  A.  G.,  Dec.  4,  1916.) 


ENLISTED  MEN:  Pay  for  time  spent  in  military  confinement  subject  to 
jurisdiction  of  civil  authorities. 

Under  Executive  Order  No.  50,  Philippine  Islands,  August  7,  1912, 
an  enlisted  man,  having  been  arrested  by  the  civil  authorities,  was 
turned  over  to  the  military  authorities  for  confinement,  subject  to 
the  disposition  of  his  case  in  the  civil  courts. 

Reld^  that  the  soldier  was  not  entitled  to  pay  for  the  time  he  was 
held  in  confinement  subject  to  the  jurisdiction  of  the  civil  authorities, 
his  status  with  respect  to  his  availability  for  military  service  during 
such  period  of  confinement  being  substantially  the  same  as  if  he  had 
been  in  the  actual  custody  of  the  civil  authorities,  and  governed  by 
A.  E.  1371.      • 

(6-250,  J.  A.  G.,  Dec.  4, 1916.) 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       643 

MEDIC  All  RESERVE  CORPS:  Purchase  of  Ordnance,  etc.,  by  members  not 
in  active  service,  of  doubtful  legality — but  members  of  OflB.cers'  Reserve 
Corps  may  purchase. 

On  inquiry  by  an  officer  of  the  Medical  Reserve  Corps  as  to  his 
right  to  purchase  from  the  Ordnance  Department  a  Springfield 
rifle,  etc.,  for  use  in  big  game  hunting. 

Held^  that  as  the  Act  of  March  4,  1911,  which  created  the  Medical 
Reserve  Corps,  conferred  upon  the  holders  of  commissions  issued 
thereunder  "all  authority,  rights  and  privileges  of  commissioned 
officers  of  the  like  grade  in  the  Medical  Corps  of  the  Army,  except 
promotion,  hut  only  when  called  into  active  duty^''  and  that,  as  sec- 
tion 37  of  the  National  Defense  Act  makes  officers  of  the  Medical 
Reserve  Corps  eligible  for  appointment  to  the  Medical  section  of  the 
Officers'  Reserve  Corps,  and  further  that  the  "  Medical  Reserve  Corps 
as  now  constituted  by  law  "  shall  "  cease  to  exist  one  year  after  the 
passage  "  of  the  National  Defense  Act,  the  sale  of  ordnance  or  ord- 
nance property  to  officers  as  members  of  the  Medical  Reserve  Corps, 
such  officers  not  being  in  active  service,  would  be  of  doubtfid  legality, 
and  recommended  that  such  sale  be  not  made  when  the  officer  will  not 
be  appointed  to  the  Officers'  Reserve  Corps. 

Held  further^  that  Paragraph  1520,  Army  Regulations,  as  to  sales 
of  ordnance,  etc.,  to  officers,  etc.,  is  sufficiently  broad  to  include  mem- 
bers of  the  Officers'  Reserve  Corps.  This  accords,  in  principle,  with 
the  opinion  of  the  Judge  Advocate  General  of  November  9,  1916,  to 
the  effect  that  as  the  Officers'  Reserve  Corps  is  an  integral  part  of  the 
Army  of  the  United  States  as  established  by  section  1  of  the  National 
Defense  Act,  its  members  are  entitled  to  purchase  uniforms,  clothing 
and  equipage  under  Paragraph  1174,  Army  Regulations. 

(6-301,  J.  A.  G.,  Dec.  23, 1916.) 


NATIONAL   GUARD':    Commission   of   officer   expiring-  while   he   is  in   the 
Eederal  service. 

Section  73  of  the  National  Defense  Act  provides: 

"  Commissioned  officers  of  the  National  Guard  of  the  several  States, 
Territories  and  the  District  of  Columbia  now  serving  under  com- 
missions regularly  issued  shall  continue  in  office,  as  officers  of  the 
National  Guard,  without  the  issuance  of  new  commissions,"  upon 
taking  the  prescribed  oath. 

Held^  that  this  provision  operates  only  to  render  effective  in  the 
National  Guard  commissions  issued  by  a  State  and  does  not  pro- 
long the  officer's  commission,  and  that  a  National  Guard  officer  in 
the  service  of  the  United  States  can  not,  under  existing  law,  be  com- 
pelled to  continue  in  the  service  of  the  United  States  as  an  officer  of 
the  National  Guard  after  the  expiration  of  his  commission. 

(58-100,  J.  A.  G.,  Dec.  6,  1916.) 

(58-241,  J.  A.  a,  Dec.  8,  1916.) 


NATIONAL  GUARD:  Furlough  of  enlisten  men  to  the  Reserve. 

The  following  questions  were  submitted : 

{a)  "  Can  a  member  of  the  National  Guard  be  furloughed  to  the 
reserve  before  the  end  of  the  active  service  period? 


644       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

(b)  "Can  a  member  of  the  National  Guard,  once  furloughed  be- 
fore the  end  of  the  three  year  term  of  active  service,  be  removed 
from  the  reserve  and  be  restored  to  the  active  list  to  serve  the  re- 
mainder of  the  three  year  active  term?  " 

Section  72,  National  Defense  Act,  provides  that  an  enlisted  man 
disch-arged  from  service  in  the  National  Guard  shall  receive  the  dis- 
charge in  writing  as  there  prescribed,  and  that  in  time  of  peace  dis- 
charges may  be  given  prior  to  the  expiration  of  terms  of  enlistment 
under  such  regulations  as  the  President  may  prescribe. 

Held,  that  the  word  "service,"  as  used  in  Section  72,  relates  to 
the  active  three  year  period,  and  that  an  enlisted  man  is  entitled  to 
a  discharge  in  writing  at  the  end  of  such  period ;  that  such  discharge 
is  not  the  final  and  absolute  discharge  so  familiar  to  the  Regular 
Army,  but  is  a  release  from  active  service,  remitting  the  soldier 
to  the  reserve.  Held,  as  to  (a),  that  since  Section  72  unqualifiedly 
authorizes  discharge  in  time  of  peace,  under  regulations  prescribed  by 
the  President,  a  National  Guardsman  may  be  discharged  from  active 
service  and  transferred  to  the  reserve  before  the  end  of  the  active 
service  period.  Held,  as  to  (b),  that  since  a  discharge  from  active 
service  is  a  release  from  so  much  of  the  enlistment  contract  as  re- 
quires active  service,  such  obligation  can  not  be  renewed  without  the 
soldier's  consent,  which  would  have  to  be  embodied  in  a  new  contract, 
and  therefore  a  member  of  the  National  Guard  reserve  can  be  re- 
stored to  the  three  year  active  service  status  in  the  National  Guard 
only  by  discharge  and  reenlistment. 

(58-214,  J.  A.^G.,  Dec.  8,  1916.) 


NATIONAL  GUARD:  Retention  of  uniform  after  muster  out,  etc. 

The  title  to  the  clothing  furnished  at  Federal  expense  to  members 
of  the  National  Guard  or  Organized  Militia  and  brought  with  them 
upon  entering  the  Federal  service,  as  well  as  the  title  to  clothing 
which  is  issued  to  them  while  in  such  service,  is  in  the  United  States, 
and  such  clothing  continues  to  be  the  property  of  the  United  States 
notwithstanding  the  muster  out,  discharge,  or  furlough  to  the  re- 
serve, of  the  soldier  to  whom  the  clothing  has  been  issued.  The 
practice  of  charging  the  soldier  with  the  value  of  clothing  drawn  by 
him  against  a  fixed  clothing  allowance  being  merely  for  convenience 
in  accounting  and  to  incite  economy  in  the  use  and  care  of  the 
clothing,  such  soldier  can  not  legally  retain  the  same  after  muster 
out,  etc.,  except  as  it  may  be  available  for  his  future  use  as  a  member 
of  the  National  Guard. 

(72-420.2,  J.  A.  G.,  Dec.  21,  1916.) 


OFFICERS:  Second  lieutenant,  Quartermaster  Corps  (pay  clerk),  not  eligible 
for  transfer  to  Infantry. 

A  second  lieutenant,  Quartermaster  Corps,  commissioned  from  pay 
clerk  under  section  9  of  the  National  Defense  Act,  requested  that  he 
be  transferred  to  second  lieutenant  of  Infantry. 

Held,  that  under  existing  laws  such  transfer  is  not  authorized. 

(64-240,  J.  A.  G.,  Dec.  8,  1916.) 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       645 

OFFICERS'  RESERVE  CORPS:  Assignment  of  members  as  disbursing  offi- 
cers when  ordered  to  active  duty. 

The  question  was  presented  whether  reserve  officers  of  the  Aviation 
Section  of  the  Signal  Corps,  ordered  to  active  duty,  may  legally  be 
assigned  to  duty  as  disbursing  officers. 

Held^  that  reserve  officers,  when  ordered  to  active  duty  in  accord- 
ance with  Sections  37  and  39  of  the  National  Defense  Act  "  for  duty 
with  troops,"  may,  while  in  active  service  for  such  duty,  be  assigned 
to  any  duty  in  connection  with  such  troops  to  which  Regular  Army 
officers  serving  therewith  may  be  assigned,  including  duty  as  disburs- 
ing officers. 

(6-228.1,  J.  A.  G.,  Dec.  19,  1916.) 


TRAVEL  EXPENSES:  Officer  on  duty  in  connection  with  National  Guard. 

Section  67  of  the  National  Defense  Act  provides  for  the  payment, 
from  the  Federal  appropriations  for  the  National  Guard,  of  the 
"  actual  and  necessary  expenses  incurred  by  officers  and  enlisted  men 
of  the  Regular  Army  when  traveling  on  duty  in  connection  with 
the  National  Guard."  In  the  case  of  an  officer  of  the  Ordnance 
Department  directed  to  make  an  inspection  of  field  artillery  material 
in  the  hands  of  the  National  Guard. 

Held,  that  he  was  entitled  to  actual  expenses  of  travel,  and  not 
mileage,  for  travel  in  the  performance  of  such  duty,  payable  from 
the  $2,000  appropriation  for  "  inspection  of  material  pertaining  to 
Field  Artillery  and  Signal  Corps  in  the  hands  of  the  National 
Guard"  (39  Stat,  647.) 

(94-210,  J.  A.  G.,  Dec.  4,  1916.) 


UNIFORM:  Wearing  of,  by  civilians  of  Army  Young  Men's  Christian  Asso- 
ciation. 

Section  125  of  the  National  Defense  Act  prohibits  the  wearing  of 
the  uniform  of  the  Army,  Navy  or  Marine  Corps,  or  any  distinctive 
part  thereof,  or  a  uniform  any  part  of  which  is  similar  to  a  distinc- 
tive part  of  the  uniform,  unless  the  wearer  be  a  member  of  the 
United  States  Army,  Navy  or  Marine  Corps,  providing,  however, 
that  certain  military  and  quasi-military  organizations  such  as  "  mem- 
bers of  the  organizations  known  as  the  Boy  Scouts  of  America,  or 
the  Naval  Militia,  or  such  other  organizations  as  the  Secretary  of 
War  may  designate,"  shall  be  excepted  from  the  prohibition. 

Held,  iXv^it,  as  the  organizations  that  are  expressly  named  as  ex- 
cepted are  either  military  or  quasi-military,  and  in  view  of  the  rule 
of  associated  words,  it  was  the  intention  of  Congress  that  the  Secre- 
tary of  War's  authority  to  designate  other  organizations  should  be 
limited  to  those  of  a  similar  character,  and  that  the  Secretary  of  AVar 
is,  therefore,  not  authorized  to  designate  the  Army  Young  Men's 
Christian  Association  as  an  organization  exempt  from  the  provisions 
of  section  125  of  the  National  Defense  Act. 

(96-140,  J.  A.  G.,  Dec.  23,  1916.) 


646        DIGEST    OF    OPINIONS    OF    THE    JUDGE    ADVOCATE    GENEEAL. 

DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  tbe  Judge  Advocate  General.) 

CIVILIAN  EMPLOYEES:  Right  of  dredge  hand  to  be  returned  upon  his 
discharge  to  place  of  hire. 

A  man  employed  at  New  Orleans  as  stoker  on  a  Government  dredge 
and  who  was  discharged  at  Pensacola,  Florida,  by  reason  of  the  cessa- 
tion of  dredging  operations,  made  claim  for  the  cost  of  his  return 
passage  to  New  Orleans  "'  under  marine  law  and  usage." 

Ileld^  that  the  claimant's  rights  to  return  passage  to  New  Orleans 
must  be  determined  by  the  agreement  which  was  made  with  him 
Avhen  he  was  hired  and  not  under  the  merchant  marine  law  and 
usage,  and  that,  therefore,  if  there  was  no  such  provision  in  the  em- 
ployment agreement,  he  was  not  entitled  to  reimbursement. 

(Comp.  Treas.,  Dec.  8,  1916.) 


COMMUTATION  OF   QUARTERS:   Officer  occupying  rcTom  in  officers'   club 
in  public  building. 

The  question  was  presented  whether  an  officer,  not  otherwise  fur- 
nished quarters,  who  rented  and  occupied  a  small  room  in  an  officers' 
club  in  a  public  building,  was  entitled  to  commutation  of  quarters. 

Held^  that  such  quarters  occupied  by  an  officer  must  be  considered 
public  quarters  within  the  meaning  of  the  laws  providing  for  quarters 
in  kind  and  commutation  thereof  to  officers  of  the  Army.  (See  22 
Comp.  Dec,  27.) 

(Comp.  Dec,  Nov.  28,  1916.) 


DISBURSING  OFFICERS:  Responsibility  in  re  forgery. 

While  in  general  a  disbursing  officer  is  not  responsible  for  pay- 
ments based  on  facts  of  which  he  has  no  knowledge  and  which 
are  certified  to  him  as  correct  by  the  proper  administrative  officer, 
this  principle  does  not  extend  to  allowing  the  disbursing  officer  credit 
for  a  pavment  made  on  a  forged  signature. 

(Comp.  Treas.,  Dec  2.  1916.) 


ENLISTED  MEN:  Allotments  of  pay,  when  forfeited. 

Where  an  enlisted  man  of  the  Army  allots  a  portion  of  his  pay  and 
thereafter,  beforathe  allottee  has  reduced  any  such  allotments  to  pos- 
session, is  sentenced  by  court-martial  to  forfeit  all  pay  then  due  (at 
time  of  sentence),  such  unpaid  allotments  are  included  in  his  pay 
"then  due,"  and,  accordingly,  are  forfeited  by  the  sentence  of  the 
court-martial. 

(Comp.  Treas.,  Dec  14,  1916.) 


MEDICAL  TREATMENT:  In  private  hospital,  Organized  Militia. 

The  Government  is  not  chargeable  with  the  cost  of  medical  treat- 
ment furnished  by  a  private  hospital  to  an  enlisted  man  of  the 


DIGEST  OF  OPINIONS  OF  THE  JUIXJE  ADVOCATE  GENERAL.       647 

Organized  Militia  called  out  in  the  national  defense  where  the  man, 
at  his  own  request  and  for  his  own  convenience,  was  permitted  to 
leave  the  military  hospital  to  go  to  his  home,  and  thereafter  entered 
the  private  hospital  on  his  own  responsibility. 
(Comp.  Treas.,  Dec.  15,  1916.) 


NATIONAL  GUARD:  Officers  entitled  to  leaves  of  absence. 

An  officer  of  the  National  Guard  included  in  the  President's  call 
for  Federal  service  who  has  taken  the  new  National  Guard  oath  pre- 
scribed by  the  Act  of  June  3,  1916,  or  has  been  mustered  into  the 
Federal  service,  is  entitled  to  the  benefits  of  the  leave  laAvs  applicable 
to  officers  of  the  Regular  Army  from  the  time  that  he  reported  at  his 
company  rendezvous  in  response  to  the  call  of  the  President. 

(Comp.  Treas.,  Dec.  4,  1916.) 


NATIONAL  GUARD:  Pay  of  soldiers  rejected  by  State  authorities  before 
muster-in. 

A  private  of  the  National  Guard  who  responded  to  the  President's 
call  of  June  18,  1916,  reporting  at  company  rendezvous  June  19,  was 
subsequently,  before  muster-in,  examined  by  the  State  authorities 
June  3,  1916,  and  rejected.  The  question  was  submitted  whether  he 
was  entitled  to  pay  from  Federal  funds  in  view  of  the  fact  that  he 
was  examined  and  discharged  without  ever  having  been  presented  to 
the  United  States  mustering  officer. 

Ileld^  that  the  soldier  was  entitled  to  pay  from  the  date  he  reported 
at  his  company  rendezvous  in  response  to  the  President's  call,  and 
that  the  State  authorities  being  unauthorized  after  the  call  to  dis- 
charge him  their  action  in  rejecting  the  soldier  was  without  legal 
force  and  effect,  but  might  be  confirmed  by  the  Federal  authorities, 
in  which  event  Jiis  right  to  pay  would  terminate  on  the  date  of  his 
rejection  by  the  State  authorities. 

(Comp.  Treas.,  Dec.  19,  1916.) 


TRANSPORTATION:   Land  grant;  shipment  of  officers'  private  mounts. 

The  transportation  rates  for  the  shipment  of  officers'  private 
mounts  which  they  are  required  to  keep  for  use  in  the  military  service 
are  subject  to  land  grant  deduction;  the  decisions  with  respect  to 
shipment  of  officers'  household  goods,  to  the  effect  that  the  rates 
therefor  are  not  subject  to  land  grant  deductions,  not  being  appli- 
cable to  horses  wdiich  are  required  to  be  kept  for  military  service. 

(Comp.  Treas.,  Dec.  11,  1916.) 


BULLETIN  9. 

Bulletin  1  WAR  DEPARTMENT, 

No.  9.     J  Washington,  February  ^,  1917. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General  of 
the  Army,  for  the  month  of  January,  1917,  and  of  certain  decisions 
of  the  Comptroller  of  the  Treasury  and  of  courts,  is  published  for 
the  information  of  the  service  in  general 
[2526413,  A.  G.  O.] 

By  order  or  the  Secretary  or  War  : 

H.  L.  SCOTT, 

Major  General,  Chief  of  Staff. 
Official  : 

H.  P.  McCAIN, 

The  Adjutant  General. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

CIVILIAN  EMPLOYEES:   Appointment  of,  as  court-martial  reporters. 

An  Army  field  clerk,  salary  $1,400  per  annum,  was  employed  as 
court-martial  reporter  while  on  leave  of  absence  and  after  office 
hours,  but  authority  for  his  payment  for  such  services  was  questioned 
on  the  ground  that  his  employment  was  prohibited  by  paragraph 
987,  Army  Regulations  (1913),  and  that  it  would  be  in  violation  of 
the  statutes  against  the  payment  of  double  compensation. 

Held,  that  A.  R.  987,  instead  of  being  a  prohibition  against  the 
appointment  of  persons  already  in  the  military  or  civil  service  as 
reporters  for  military  courts,  and  paying  them  therefor,  is  an  ex- 
press recognition  of  the  right  to  do  so,  subject  to  the  requirements  of 
A.  R.  986  with  respect  to  the  manner  of  appointment  and  rates  of 
pay,  and  further,  that  such  employmentj  during  a  leave  of  absence 
or  outside  of  regular  office  hours,  is  not  m  violation  of  the  so-called 
double  compensation  statutes  (R.  S.,  1763-1765,  and  act  of  Aug.  29, 
1916,  39  Stat.,  582). 

(16-412,  J.  A.  G.,  Jan.  10,  1916.) 


COMMUTATION  OF  QUARTERS:   Officers  commissioned  in  the  National 
Guard. 

An  officer  of  the  Regular  Army,  while  on  detached  duty  at  Phila- 
delphia, was  assigned  as  National  Guard  mustering  officer  at  Macon, 
Ga.,  and  while  on  the  latter  duty  accepted  a  commission  in  the  Na- 
tional Guard,  but  continued  on  duty  as  mustering  officer  for  several 
weeks  thereafter.  After  joining  his  regiment  (National  Guard)  in 
pursuance  of  War  Department  orders,  he  claimed  commutation  of 
648 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       649 

quarters  and  the  stabling  of  his  horse  at  Philadelphia  on  the  ground 
that  he  had  not  been  relieved  from  his  detached  duty  status  at  Phila- 
delphia. ' 

Held.,  that  when  an  officer  is  assigned  to  a  regiment  and  ordered  to 
join  that  regiment  for  duty,  his  station  becomes  that  of  the  organi- 
zation to  which  he  is  thus  attached,  and  that  in  the  instant  case  the 
officer  could  not  properly  be  regarded  as  continuing  in  his  detached 
duty  status  at  Philadelphia,  after  he  was  relieved  from  duty  as 
mustering  officer  at  Macon  and  ordered  to  join  his  regiment. 

(58-720,  J.  A.  G.,  Jan.  19,  1917.) 


CONTRACTS:  Bailment. 

In  the  case  of  a  contract  for  the  manufacture  from  cloth  furnished 
by  the  Government  of  uniform  clothing,  the  building  in  which  the 
work  was  being  done  having  been  destroyed  by  fire,  damaging  the 
materials  furnished  by  the  Government,  on  the  question  whether  or 
not  the  contractor  could  be  charged  with  the  loss,  in  the  absence  of 
a  provision  making  him  responsible  for  the  safety  of  the  property, 

Held^  that  if  the  loss  occurred  without  fault  or  negligence  on  the 
part  of  the  contractor,  as  stated,  it  must  fall  on  the  Government  as 
owner  of  the  property;  that  in  the  absence  of  express  provisions  in 
the  contract,  he  is  not  liable  as  an  insurer  of  the  property  of  the 
bailor,  but  is  simply  liable  for  the  proper  care  of  the  same  while  in 
his  custody.    See  6  Corpus  Juris,  1110,  and  authorities  there  cited. 

Held  further^  that  the  contractor  was  legally  entitled  to  be  paid 
for  the  garments  which  were  completed  and  ready  for  delivery  as  well 
as  for  those  which  were  completed  and  accepted;  and  that  the  con- 
tractor should  be  allowed  a  reasonable  time  for  the  completion  of  the 
contract  after  materials  are  furnished  to  replace  those  destroyed  by 
the  fire.  On  the  question  whether  a  clause  in  the  contract  making 
the  contractor  "  liable  for  any  loss  of  or  damage  to  any  of  the  ma- 
terials furnished  by  the  Quartermaster  Corps  while  in  his  posses- 
sion," would  cover  a  loss  by  fire. 

Held,  that  such  a  clause  would  clearly  make  the  contractor  liable 
for  loss  by  fire;  that  it  would  make  him  liable  as  insurer  of  the 
property  except  for  causes  falling  within  the  well-recognized  excep- 
tion of  losses  by  acts  of  God  or  a  public  enemy ;  and  that  a  loss  of 
the  property  by  fire,  unless  the  result  of  lightning,  would  not  be 
within  this  exception.     See  4  R.  C.  L.,  714. 

(76-700  and  7G-333,  J.  A.  G.,  Jan.  3  and  23,  1917.) 


CONTRACTS:  Collateral  to  secure  performance. 

Certain  questions  were  submitted  as  to  the  acceptance  of  Govern- 
ment, municipal,  or  corporate  bonds,  or  other  collateral,  to  secure 
contracts  for  aeroplanes  and  aeroplane  eqidpment,  it  being  stated 
that  owing  to  conflicting  claims  as  to  patent  rights,  the  rates  of 
surety  companies  on  bonds  to  secure  such  contracts  were  excessive. 

Held,  that  there  is  no  statute  which  limits  the  discretion  of  the 
Secretary  of  War  as  to  the  kind  of  security  which  he  may  require 
as  to  this  class  of  contracts;  that  the  Secretary  of  War  may,  there- 


650       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

fore,  authorize  the  acceptance  of  collateral  as  proposed;  and  that  the 
instrument  providing  for  such  security  should  define  the  conditions 
under  which  the  deposit  is  made,  provide  for  the  withdrawal  of  the 
particular  bonds  and  the  substitution  of  others  in  the  event  of  such 
withdrawal  becoming  desirable;  and  should  clearly  define  the  rights 
of  parties  in  case  it  becomes  necessary  to  dispose  of  the  collateral  to 
satisfy  any  claims  of  the  Government  under  the  contract 
(12-120,  J.  A.  G.,  Jan.  11,  1917.) 


CONTRACTS:  Construction. 

In  the  case  of  a  contract  for  supplying  water  at  varying  rates  for 
different  quantities,  where  it  was  not  stated  that  the  rates  for  the 
respective  quantities  should  apply  monthly,  but  a  discount  was  pro- 
vided for  bills  "  paid  by  the  10th  of  each  month," 

Held,,  that  the  contract  should  be  construed  as  providing  for 
monthly  payments  at  prescribed  rates  for  the  respective  quantities 
furnished  during  the  month ;  it  appearing  further  that  this  construc- 
tion would  make  the  payments  conform  to  the  "  regular  tariff  as 
charged  to  all  consumers." 

(76-700,  J.  A.  G.,  Jan.  23, 1917.) 


DETACHED  SERVICE:  Oflacer  on  duty  as  Division  Adjutant. 

An  Infantry  officer  of  the  Regular  Army  with  the  rank  of  major, 
having  served  as  acting  adjutant  of  a  National  Guard  Infantry  Divi- 
sion from  October  15  to  November  2,  1916,  inquired  whether  such 
duty  was  to  be  regarded  as  duty  with  troop  organizations  within 
the  meaning  of  the  detached  service  law. 

Held,,  that  such  service  was  duty  with  organizations  of  troops 
within  the  meaning  of  the  detached  service  law,  the  case  being  gov- 
erned by  a  former  ruling  dated  June  18,  1914,  in  which  it  was  held 
with  reference  to  the  detached  service  legislation  of  April  27,  1914, 
that  "  when,  therefore,  a  field  officer  of  the  line  performs  the  regular 
and  normal  duties  of  a  brigade  adjutant,  he  is  on  duty  and  actually 
present  for  duty  with  a  command  composed  of  not  less  than  two 
troops,  batteries,  or  companies  of  that  branch  of  the  Army  in  which 
the  officer  holds  his  commission,  provided,  of  course,  the  brigade  be  a 
brigade  of  his  branch  of  the  service." 

(6-124.3,  J.  A.  G.,  Dec.  6, 1916.) 


ENLISTED  MEN:  Appointment  as  cadets,  U.  S.  Military  Academy. 

An  enlisted  man  with  more  than  one  year's  service  in  the  National 
Guard  inquired  whether  such  service  could  be  taken  into  considera- 
tion in  determining  his  eligibility  for  appointment  from  the  Regular 
Army  as  a  cadet  to  the  U.  S.  Military  Academy  under  section  2  of 
the  act  of  May  4,  1916,  which  provides : 

"That  the  President  is  hereby  authorized  to  appoint  cadets  to  the 
United  States  Military  Academy  from  among  enlisted  men  in  num- 
ber as  nearly  equal  as  practicable  of  the  Regular  Army  and  the 


DIGEST  OF  OPINIONS  OF  THE  JUEM3E  ADVOCATE  GENERAL.       651 

National  Guard  between  the  ages  of  nineteen  and  twenty-two  years 
who  have  served  as  enlisted  men  not  less  than  one  year,  to  be  selected 
under  such  regulations  as  the  President  may  presci'ibe." 

Held,  that  to  satisfy  the  requirements  of  the  statute  the  prior  serv- 
ice must  have  been  rendered  in  that  branch  from  which  the  applica- 
tion is  made. 

(6-142,  J.  A.  G.,  Jan.  18, 1917. ) 


ENLISTED   MEN:   Appointment   of   sergeants,   limited  warrant,    in  provi- 
sional ambulance  companies. 

A  lance  corporal  in  a  provisional  ambulance  company,  with  the 
Mexican  Punitive  Expedition,  having  passed  an  examination  for 
appointment  as  sergeant,  Medical  Department,  limited  warrant,  the 
question  was  presented  as  to  the  legality  of  making  such  appoint- 
ment. 

Held,  that  such  appointments  may  properly  be  made  in  provisional 
ambulance  companies  the  organization  of  which  has  been  authorized 
or  approved  by  the  Secretary  of  War. 

(6-227.1,  J.  A.  G.,  Nov.  17, 1916.) 


ENLISTED  MEN:  Lance  corporals. 

The  question  was  presented  as  to  the  propriety  of  appointing  a 
lance  corporal,  in  an  Infantry  supply  company,  fi'om  the  grade  of 
wagoner,  in  view  of  the  fact  that  the  personnel  of  such  company  does 
not  include  the  grade  of  private. 

Held,  that  such  appointment  may  not  be  made,  so  long  as  para- 
graph 272,  A.  K..,  1913,  authorizes  only  "  privates  "  to  be  so  appointed. 

(6-151.1,  J.  A.  G.,  Jan.  12, 1917.) 


MILITABY  ACADEMY:  Appointment  of  cadets. 

The  question  was  presented  whether  enlisted  service  in  the  Navy 
may  be  counted  in  determining  the  eligibility  of  an  enlisted  man  in 
the  Regular  Army  for  appointment  to  the  Military  Academy  under 
the  provisions  of  section  2  of  the  act  of  May  4,  1916,  authorizing 
appointment  as  cadets  of  enlisted  men  of  the  Regular  Army  and 
National  Guard  "  who  have  served  as  enlisted  men  not  less  than  one 
year." 

Held,  that  the  statute  contemplates  a  year's  service  in  one  or  the 
other  of  the  forces  named,  and  that  service  as  an  enlisted  man  in  the 
Navy  could  not  be  counted  for  the  purposes  of  the  act. 

(6-141,  J.  A.  G.,  Dec.  4, 1916.) 


NATIONAL  GUARD:  Enlisted  men,  discharge. 

An  enlisted  man  of  the  New  York  National  Guard  had  served,  on 
March  15,  1915,  five  years,  the  term  of  his  enlistment,  after  deducting 
the  time  he  was  "  dropped,"  which  under  the  provisions  of  the  State 
law  may  be  done  without  terminating  service.    Not  having  been  dis- 


652       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEEAL. 

charged  at  the  time  of  the  call  of  the  President  for  the  muster  of  his 
organization  into  the  Federal  service,  he  responded  to  the  call  and, 
oirjuly  1,  1916,  was  mustered  into  the  service  of  the  United  States. 

Ueld^  on  a  claim  made  for  his  discharge,  that  this  soldier  should 
be  credited  with  the  whole  of  his  term  which  he  served  in  the  Na- 
tional Guard,  less  the  periods  during  which  he  was  "  dropped,"  and 
that,  having  served  more  than  six  years,  he  was  entitled  to  a  dis- 
charge from  the  service. 

(58-214,  J.  A.  G.,  Jan.  18,  1917.) 


NATIONAL  GUARD:  Organization. 

Section  60  of  the  National  Defense  Act  provides: 

"  The  organization  of  the  National  Guard,  including  the  composi- 
tion of  all  units  thereof,  shall  be  the  same  as  that  which  is  or  may 
hereafter  be  prescribed  for  the  Kegular  Armv.  subject  in  time  of 
peace  to  such  general  exceptions  as  may  be  authorized  by  the  Secre- 
tary of  War." 

Request  was  made  on  behalf  of  medical  officers  of  the  National 
Guard  in  the  service  of  the  United  States  that  the  Secretary  of  War, 
under  his  power  to  authorize  general  exceptions,  permit  them  to 
hold  the  office  of  captain  and  to  receive  the  pay  of  that  office,  irre- 
spective of  their  length  of  service  as  medical  officers  of  the  National 
Guard. 

Ueld^  that  the  word  "  exception  "  in  section  60  is  used  in  the  sense 
of  "  exclusion,"  that  it  does  not  include  "  substitution,"  that  the 
statute  authorizes  modification  only  by  way  of  exclusion,  and  that 
the  request  could  not,  therefore,  be  granted. 

(58-213.2,  J.  A.  G.,  Jan.  13,  1917.) 


NATIONAL  GUARD:  Title  to  unifonn  clothing. 

The  question  of  the  title  of  enlisted  men  of  the  National  Guard 
or  Organized  Militia  to  the  uniform  clothing  issued  to  them  while 
in  the  Federal  service  was  again  submitted  with  reference  to  a  com- 
munication from  the  adjutant  general  of  a  State,  in  which  it  was 
contended  that  upon  the  discharge  or  furlough  to  the  Reserve  of  a 
soldier  of  the  Regular  Army,  the  clothing  issued  to  him  becomes  his 
private  property,  and  that  the  same  rule  should  apply  to  the  enlisted 
men  of  the  National  Guard  upon  their  release  from  Federal  service. 

Ueld^  that  it  is  clear  from  the  statutes  forbidding  the  sale  of  uni- 
form clothing,  particularly  section  35  of  the  Criminal  Code,  and  the 
decisions  of  the  courts  thereunder,  that  the  uniform  clothing  issued 
to  a  soldier  is  the  "  public  property  of  the  United  States ; "  that  a 
soldier  of  the  Regular  Army,  upon'his  discharge  or  furlough  to  the 
Reserve,  does  not  acquire  any  legal  title  thereto ;  and  that  by  section 
125  of  the  National  Defense  Act  of  June  3,  1916,  he  is  only  per- 
mitted to  wear  the  uniform  to  his  home  within  three  months  after 
his  discharge. 

Held  fuHjier,^  that  as  a  soldier  of  the  National  Guard  or  Or- 
ganized Militia  is  not  finally  discharged,  upon  his  muster-out  of  the 
Federal  service,  the  clothing  in  his  possession  upon  release  from 


DIGEST  OF   OPINIONS   OF   THE   JUDGE  ADVOCATE   GENERAL.       653 

such  service,  should  be  available  for  his  use  while  a  member  of  the 
National  Guard  or  Organized  Militia  after  his  muster-out;  and  that 
settlement  with  the  State  should  be  made  upon  the  basis  of  replacing 
the  clothing  which  was  brought  with  the  State  organizations  into 
the  Federal  service  by  the  clothing  in  the  possession  of  the  same 
upon  their  muster-out. 

(72-420.2,  J.  A.  G.,  Dec.  21,  1916.) 


OFFICERS'  RESERVE  CORPS:  Eligibility  of  officers  and  enlisted  men  of 
Regular  Army  and  National  Guard  for  membership  in. 

An  officer  of  the  National  Guard  asked  whether  he  was  eligible 
for  appointment  in  the  Officers'  Reserve  Corps,  and,  if  eligible, 
whether  he  might  continue  in  the  active  service  of  the  United  States 
as  an  officer  of  the  National  Guard  after  his  appointment  as  an  officer 
of  the  Officers'  Reserve  Corps. 

Ileld^  that  since  the  purpose  for  which  the  Officers'  Reserve  Corps 
is  organized  is  to  provide  a  reserve  of  officers,  it  is  a  logical  conclu- 
sion that  such  a  reserve  should  not  be  composed  of  officers  already 
available  as  such  for  the  military  service  of  the  United  States;  and 
that  the  regulation  made  by  the  President  eliminating  from  con- 
sideration for  appointment  in  the  Officers'  Reserve  Corps  officers  of 
the  National  Guard  and  of  the  Regular  Army,  contained  in  the  first 
sentence  of  Section  III  of  General  Orders  No.  42,  War  Depart- 
ment, July  28,  1916,  and  reading — 

"  No  applicant  will  be  examined  who  is  an  officer  of  the  Regular 
Army  on  the  active  list,  or  the  National  Guard,  or  who  is  not  a 
citizen  of  the  United  States  " ;  is  made  under  ample  authority  of 
statute  and  is  effective  to  exclude  from  appointment  in  the  Officers' 
Reserve  Corps  both  officers  of  the  National  Guard  and  officers  of  the 
Organized  Militia  not  yet  transformed  into  the  National  Guard,  as 
well  as  officers  of  the  Regular  Army. 

With  respect  to  the  third  paragraph  of  section  37  of  the  National 
Defense  Act,  providing  that — 

"All  persons  now  carried  as  duly  qualified  and  registered  pursuant 
to  section  twenty-three  of  the  act  of  Congress  approved  January 
twenty-first,  nineteen  hundred  and  three,  shall  for  a  period  of  three 
years  after  the  passage  of  this  oct,  be  eligible  for  appointment  in  the 
Officers'  Reserve  Corps  in  the  section  corresponding  to  the  arm, 
corps,  or  department  in  which  they  have  been  found  qualified,  with- 
out further  examination,  except  a  physical  examination,  and  sub- 
ject to  the  limitations. as  to  age  and  rank  herein  prescribed:  Pro- 
vided^ That  any  person  carried  as  qualified  and  registered  in  the 
grade  of  colonel  or  lieutenant  colonel  pursuant  to  the  provisions  of 
said  act  on  the  date  when  this  act  becomes  effective  may  be  commis- 
sioned and  recommissioned  in  the  Officers'  Reserve  Corps  with  the 
rank  for  which  he  has  been  found  qualified  and  registered.     *     *     *  55 

Held,,  that  while  this  provision  of  the  statute  declares  the  persons 
therein  described  to  be  eligible  for  appointment  in  the  Officers'  Re- 
serve Corps,  it  is  not  a  mandate  for  their  appointment;  and,  if  for 
reasons  of  national  policy  the  President  may  decide,  as  it  is  apparent 
he  has  decided,  that  persons  holding  commissions  in  available  mili- 
tary forces  of  the  United  States  shall  not  also  be  commissioned  in  the 
Officers'  Reserve  Corps,  the  provision  of  section  37  of  the  national 


654       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

defense  act  just  quoted  is  not  violated.  The  eligibility  of  such  officers 
is  not  interfered  witli^  though,  for  the  reason  that  they  already  bear 
a  relation  to  the  Government  which  is  equivalent  to  that  which  would 
be  established  by  their  appointment  in  the  Officers'  Reserve  Corps, 
and  which  renders  their  appointment  unnecessary  for  the  attainment 
of  the  purpose  of  the  law  creating  the  Officers'  Eeserve  Corps,  the 
President  has,  in  his  discretion,  determined  and  ordered  that  they 
shall  not  be  appointed. 

Ih'ld  further^  that  enlisted  men  of  the  Regular  Army  or  National 
Guard  who  are  found  qualified,  upon  examination,  may  be  commis- 
sioned in  the  Officers'  Reserve  Corps  without  impairment  of  their 
enlisted  status,  and  that  officers  of  the  Officers'  Reserve  Corps  may,  if 
otherwise  eligible,  enlist  in  the  Regular  Army  or  National  Guard. 
(58-241,  6-150,  J.  A.  G.,  Aug.  30,  1916.) 
(58-241,  J.  A.  G.,  Aug.  30,  1916,  and  Dec.  27j  1916.) 


OrFICERS'    RESERVE   CORPS:    Eligibility    of   Philippine   Scouts  for   ap- 
pointment in. 

The  question  was  presented  whether  under  the  laws  and  regulations 
governing  the  Officers'  Reserve  Corps  an  officer  of  Philippine  Scouts 
is  eligible  for  appointment.  General  Orders  No.  32,  War  Depart- 
ment, 1916,  directs  that: 

"  No  applicant  will  be  examined  who  is  an  officer  of  the  Regular 
Army,     *     *     * " 

Held^  that  an  officer  of  Philippine  Scouts  is  an  officer  of  the  Regu- 
lar Army  in  the  sense  of  the  regulation  and  is  not  eligible  for  appoint- 
ment in  the  Officers'  Reserve  Corps. 

(6-250,  J.  A.  G.,  Jan.  19,  1917.) 


OFFICERS'   RESERVE   CORPS:  Purchase   of   subsistence   stores  by   mem- 
bers of. 

Upon  a  request  for  information  from  a  member  of  the  Officers' 
Reserve  Corps  on  the  inactive  list  as  to  whether  he  was  entitled  to  the 
privilege  of  purchasing  subsistence  stores  under  paragraph  1239, 
A.  R.,  1913, 

Ileld^  that  sales  of  Government  property  to  members  of  the  Officers' 
Resene  Corps  on  the  inactive  list  should  be  limited  to  those  articles 
of  clothing  and  equipment  which  would  be  required  by  them  in  the 
public  service  in  case  of  their  being  called  on  for  active  duty,  and  that 
as  subsistence  stores  do  not  fall  within  this  category,  their  sale  to 
members  of  the  Officers'  Reserve  Corps  not  in  active  service  is  not 
authorized. 

(6-301,  J.  A.  G.,  Jan.  15,  1917.) 


OFFICIAL  PAPERS:  Copies  of,  to  support  claims. 

On  application  by  attorneys  for  a  copy  of  an  official  report  of  a 
board  of  officers  respecting  the  use  and  occupation  of  private  lands 
for  military  purposes, 

Held^  that  in  view  of  the  statute  which  prohibits  officers  from  aid- 
ing or  assisting  in  the  prosecution  or  support  of  any  claims  against 
the  Government  (section  109,  Criminal  Code),  as  well  as  of  the  pro- 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       655 

visions  of  paragraph  824,  Army  Regulations,  on  the  subject,  and  in 
line  with  the  practice  common  to  the  several  Executive  Departments, 
the  request  should  not  be  complied  with — an  additional  reason  being 
that  the  Department  of  Justice  would  be  called  upon  to  defend  a  suit 
based  on  the  claim,  and  might  be  embarrassed  by  the  conclusions  of 
the  board. 

(66-124,  J.  A.  G.,  Jan.  12,  1917.) 


POST  EXCHANGES:  Settlement  of  disputes  between  exchanges  and  cred- 
itors. 

A  post  exchange  of  a  National  Guard  regiment  in  the  service  of  the 
United  States  purchased  certain  supplies,  which  were  returned  to  the 
vendor  for  credit  on  account  when  the  regiment  was  ordered  mustered 
out  of  the  Federal  service.  The  vendor  refused  to  accept  the  goods 
returned,  asserting  that  they  were  not  purchased  with  that  under- 
standing, while  the  post  exchange  officer  insisted  that  all  the  ex- 
change's goods  were  purchased  with  the  distinct  understanding  that 
they  were  to  be  returned  in  the  event  of  the  muster-out  of  the  regi- 
ment.    The  vendor  appealed  to  the  War  Department. 

Held^  that  it  is  not  the  policy  of  the  War  Department  to  interfere 
in  the  contractual  relations  between  post  exchanges  and  their 
creditors  where  there  is  a  bona  fide  dispute  which  appears  to  be  a 
proper  case  for  judicial  determination,  and  that  no  action  could  be 
taken  in  the  instant  case  for  the  further  reason  that  the  regiment  to 
which  the  post  exchange  belonged  had  been  mustered  out  of  the 
Federal  service  and  its  officers  had  passed  primarily  beyond  the 
control  of  the  War  Department. 

(40-100,  J.  A.  G.,  Jan.  2,  19J7.) 


PUBLIC  TBOPERTY:  Liability  of  ship  owner  for  loss  or  damage  of,  at  sea. 

In  the  case  of  two  Army  mules  lost  at  sea  from  a  commercial  vessel 
upon  which  they  were  being  shipped  by  the  Quartermaster  Corps, 
the  steamship  company  claimed  exemption  from  liability  on  the 
ground  that  the  loss  was  due  to  dangers  of  the  sea,  the  mules  having 
been  washed  overboard  from  the  deck,  where  they  were  stowed  in 
cattle  stalls  when  the  vessel  "  shipped  a  succession  of  heavy  seas." 

HeM^  that  under  the  Harter  Act  (27  Stat.,  445)  it  was  incumbent 
upon  the  vessel  owner  to  show  that  it  exercised  due  diligence  to  make 
the  vessel  seaworthy  before  commencement  of  the  voyage,  including 
the  deck  structure  for  securing  the  mules,  and  that  in  the  absence  of 
proof  of  the  exercise  by  the  company  of  due  diligence  to  make  the 
vessel  in  all  respects  seaworthy,  as  required  by  the  Harter  Act,  the 
companv  could  not  be  exempted  from  liability  for  the  loss. 

(76-700,  J.  A.  G.,  Jan.  22,  1917.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

CLAIMS:  Additional  payment  after  final  settlement,  jurisdiction. 

Upon  making  payment  under  a  contract  for  furnishing  a  machine 
lathe  according  to  specifications,  the  sum  of  $6.07  was  deducted  for 


656   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEEAL. 

liquidated  damages  for  delay.  Both  the  Government  and  the  con- 
tractor understood  at  that  time  that  the  deduction  was  proper,  but 
subsequentlv  it  was  found  by  the  contractor  that  the  delay,  which  oc- 
curred in  the  subcontractor's  manufactory,  was  due  to  a  strike  and 
was  within  the  exception  against  liquidated  damages  under  the  con- 
tract.    Upon  presentation  of  claim  for  the  amount  deducted, 

Ileld^  by  the  comptroller,  that  final  settlement  having  been  made 
with  the  contractor  in  accordance  with  the  facts  as  understood  at  the 
time  of  settlement,  the  voucher  submitted  consituted  a  claim  for  ad- 
ditional payment  which  could  not  properly  be  paid  by  the  War  De- 
partment but  should  be  sent  to  the  auditor  for  the  AVar  Department 
for  development  of  the  facts  and  settlement. 
(Comp.  Treas.,  Jan.  18,  1917.) 


PAY  AND  ALLOWANCES:  Receiving  salaries  of  two  positions. 

Section  6  of  the  act  of  May  10,  1916,  as  amended  (39  Stat.,  120, 
582),  prohibits  any  person  from  receiving  the  pay  of  two  Federal 
positions  "  when  the  combined  amount  of  said  salaries  exceeds  the 
sum  of  $2,000  per  annum,"  but  it  is  expressly  provided  that  the  act 
shall  not  apply  to  retired  officers  and  enlisted  men  or  to  officers  and 
enlisted  men  of  the  Organized  Militia  and  Naval  Militia.  In  the 
case  of  a  quartermaster  clerk  w  ho  held  a  commission  in  the  National 
Guard  and  was  mustered  into  the  Federal  service, 

Held^  that  upon  his  muster  into  the  Federal  service  he  ceased  to 
be  a  member  of  the  National  Guard,  within  the  meaning  of  the  Act 
of  May  10,  1916,  and  became  an  officer  of  the  Army  and  as  such  was 
subject  to  the  prohibition  of  that  act. 

(Comp.  Treas.,  Jan.  3,  1917.) 


DECISIONS  OF  THE  COURTS. 
(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

CONTBACTS:  Correction  of  mistake. 

In  the  case  of  a  Navy  Department  contract  for  furnishing  coal, 
delivered  at  Manila  Bay  from  American  ports,  the  terms  were  set- 
tled by  the  Bureau  of  Equipment,  and  it  was  agreed  that  a  certain 
important  clause  appearing  in  the  printed  specifications  upon  which 
proposals  were  asked  should  be  omitted  from  the  contract.  Through 
a  clerical  inadvertence,  however,  the  clause  was  left  in  the  requisition 
sent  to  the  Bureau  of  Supplies  and  Accounts,  and  the  contract  was 
drawn  embodying  it  and  signed  by  the  contractor  without  careful 
reading.  Thereafter,  when  the  mistake  was  discovered,  the  Navy 
Department  notified  the  contractor  that  the  contract  would  be 
amended  by  the  omission  of  the  clause,  but  the  accounting  officers 
refused  to  recognize  the  amendment.  In  a  suit  for  the  reformation 
of  the  contract, 

Held,  by  the  Supreme  Court,  that  the  contractor  was  entitled  to 
have  the  written  contract  corrected,  the  court  saying:  "It  is  the 
contract  that  has  been  made  through  the  agent  authorized  to  make  it 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       657 

that  is  to  be  reduced  to  writing  and  if  a  clerk  or  some  other  agent 
makes  a  mistake  we  perceive  no  reason  why  the  writing  should  not 

be  made  to  conform  to  the  fact.  *  *  *  There  was  a  mistake  made 
by  a  clerk  in  not  striking  out  a  printed  clause  from  that  requisition. 
It  is  as  if  a  principal,  after  making  the  agreement,  had  taken  a 
printed  form  and  forgotten  to  draw  his  pen  through  the  words.  The 
failure  of  the  contractor  to  read  before  signing  an  instrument,  the 
terms  of  which  he  had  seen  in  print,  is  not  enough  to  debar  him  from 
seeking  relief." 

In  reference  to  the  contractor's  further  claim  for  the  recovery  back 
of  port  charges  levied  against  his  vessels  at  Manila  on  the  ground 
that  the  Philippine  tariff  act  of  March  3,  1905,  exempts  from  such 
charges  "  a  vessel  belonging  to  or  employed  in  the  service  of  the 
Government  of  the  United  States," 

Held^  that  the  words  quoted  do  not  mean  every  vessel  that  carries 
a  ton  or  a  cargo  of  coal  for  the  Government  but  only  one  that  is  under 
the  control  of  the  United  States,  and  is  an  agency  of  the  Govern- 
ment, and  that  therefore  the  contractor's  vessels  did  not  come  within 
the  meaning  of  the  provision. 

{Ackerlind  v.  United  States^  decided  by  U.  S.  Sup.  Ct.,  Apr.  3, 
1916.) 


PUBLIC  PROPERTY:  Damage  to. 

In  a  suit  by  the  United  States  in  admiralty  against  the  owner  of  a 
vessel  for  injuries  to  a  Government  cable, 

Held^  by  the  court,  that  as  the  evidence  showed  that  the  damage 
was  the  result  of  negligence  in  the  management  of  the  vessel,  there 
should  be  a  decree  for  the  Government  unless  the  claim  of  the  owner 
of  the  vessel  that,  owing  to  the  character  of  the  property  injured, 
admiralty  was  without  jurisdiction,  was  sound.  Upon  the  latter 
point,  Ileld^  that  under  the  authorities  the  location  of  the  cable  is 
controlling  and  gives  it  a  maritime  relation;  and  that  since  the  in- 
juries were  done  in  the  operation  of  navigation  to  a  cable  while  occu- 
pying some  portions  of  the  navigable  channel,  the  matter  came 
within  the  admiralty  jurisdiction.     . 

{United  States  v.  North-German  Lloyd^  District  Court,  So.  Dist. 
of  N.  Y.,  Jan.  13,  1917.) 

93668°— 17 42 


BULLETIN  15. 

Bulletin!  WAR  DEPARTMENT, 

■^Q^  15^   J  Washington,  March  2Jf.^  1917. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General  of 
the  Army,  for  the  month  of  February,  1917,  and  of  certain  decisions 
of  the  domptroller  of  the  Treasury  and  of  courts,  is  published  for 
the  information  of  the  sei^^ice  in  general. 
[2526413  A— A.  G.  O.] 

By  order  of  the  Secretary  of  War  : 

H.  L.  SCOTT, 

Major  General^  Chief  of  Staff. 

Official  : 

H.  P.  McCain, 

The  Adjutant  GeTieral. 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ABSENCE:  Stoppage  of  pay. 

Should  a  stoppage  of  pay  be  made  against  a  soldier  for  the  time  he 
is  absent  from  duty  under  test  to  ascertain  whether  he  is  suffering 
from  disease  resulting  from  his  own  misconduct  ? 

Held:  Soldiers,  presumably  not  diseased,  ordered  into  hospital 
for  the  purpose  of  ascertaining  whether  they  have  diseases  due  to 
their  own  misconduct,  should  not  be  subject  to  stoppage  for  absences 
so  occasioned  when  the  test  does  not  disclose  the  presence  of  such 
diseases,  and  this  should  be  the  rule  regardless  of  the  suspicion  that 
may  be  engendered  by  a  record  of  previous  but  presumably  eradicated 
disease. 

(34-052,  J.  A.  G.,  Feb.  21,  1917.) 


ALLOWANCES:  Issue  of  shelter  tents  to  officers  on  memorandum  receipt. 

The  War  Department  interpretation  of  pertinent  statutes  is  that 
the  issue  of  Government  property  to  officers  in  cases  not  specifically 
authorized  by  law  is  a  violation  of  Revised  Statutes  1269  which  for- 
bids allowances  to  officers  except  as  provided  by  statute.  The  ques- 
tion is  raised  whether  the  issue  of  shelter  tents  to  officers  on  memo- 
randum receipt  is  forbidden  by  Revised  Statutes  1269. 

Held :  The  legal  intendment  of  the  word  "  allowance  "  imports  com- 
pensation. That  which  is  given  a  man  for  the  primary  purpose  of 
his  advantage  as  a  man  is  an  allowance;  that  which  is  intrusted  to 
him  to  use  for  the  primary  purposes  of  the  Government  is  not  an 
allowance.  Shelter  tentage,  and  in  general  the  war  material  of  the 
Government,  which  is  intrusted  to  an  officer  on  memorandum  receipt, 

658 


DIGEST  OF  OPINIONS  OF  THE  JUEKJE  ADVOCATE  GENERAL.       659 

not  as  compensation  but  to  promote  the  performance  of  his  military 
duty,  is  not  an  allowance,  and  so  may  be  issued  without  express 
statutory  authority. 

(80-130,  J.  A.  G.,  Feb.  14,  1917.) 


BONDS:  Cancellation  of. 

Upon  the  question  raised  as  to  the  authority  of  the  Secretary  of 
War  to  surrender  a  bond,  wiiich  had  been  accepted  by  him  in  the 
exercise  of  his  discretion  under  a  statute,  upon  the  city  furnishing 
a  bond  in  a  reduced  penalty  deemed  sufficient  for  the  purpose. 

Ileld^  in  accordance  with  the  practice  of  the  several  executive  de- 
partments, that,  in  the  absence  of  authority  from  Congress,  ex- 
ecutive officers  have  no  authority  to  surrender  or  release  obligations 
of  the  United  States;  that  upon  the  acceptance  of  the  bond  the 
United  States  acquired  certain  rights  as  obligee;  and  that  the  princi- 
ple is  that  no  executive  officer,  without  authority  of  law,  can  sur- 
render or  waive  such  rights.  Wliile  the  "United  States  has  the  same 
powers  in  respect  to  contracts  that  private  personsi  have  {TJ .  JS.  v. 
/Smith,  194  U.  S.,  218)  the  principle  is  that  its  officers  or  agents  do 
not  possess  plenary  powers  (8  Comp.  Dec,  106),  and  can  not,  with- 
out authority  from  Congress,  surrender  or  waive  the  rights  of  the 
Government  (citing  4,  Opin,  Atty.  Gen.,  312).  '\A'liile  the  Secretary 
of  War  may,  if  he  deems  the  security  insufficient,  require  further 
security,  he  may  not,  therefore,  without  authority  of  Congi^ess,  re- 
lease security  which  has  been  accepted. 

(12-332,  J.  A.  G.,  Jan.  3,  1917.) 


CIVIL  AUTHORITIES:  Expenses  for  detention  of  soldier. 

WTiere  a  soldier  absent  without  leave  was  arrested  by  the  chief  of 
police  of  a  town,  who  notified  the  military  authorities  thereof,  and 
was  instructed  to  hold  him  until  the  arrival  of  a  guard  sent  to  con- 
duct the  soldier  back  to  his  post, 

Held,  that  the  chief  of  police  was  entitled  to  reimbursement  for 
expense  incurred  by  him  in  connection  with  the  arrest  and  deten- 
tion of  the  soldier,  such  arrest  having  been  ratified  by  the  request 
of  the  military  authorities  that  he  be  held,  and  that  there  being  no 
other  appropriation  available  therefor  payment  could  be  authorized 
by  the  Secretary  of  War  from  the  appropriation  for  contingencies 
of  the  Army. 

(2G-200,  J.  A.  G.,  Jan.  3,  1917.) 


CONTRACTS:   Advertising  for  bids. 

The  city  of  New  York  had  appropriated  $95,000  to  fill  in  certain 
marsh  lands  which  it  held  adjacent  to  other  marsh  lands  owned  by 
the  Government  on  a  military  reservation  in  New  York  Harbor.  It 
offered  to  enter  into  a  contract  with  the  Government  to  fill  in  at  the 
same  time,  and  at  the  actual  cost  of  the  work,  the  said  Government 
marsh  lands,  the  estimated  cost  of  the  work  required  to  be  done  on 


660       DIGEST  OF  OPINIONS  OF   THE   JUDGE  ADVOCATE   GENERAL. 

the  Government  reservation  being  but  $2,500,  about  one-half  of  what 
it  was  estimated  that  the  work  would  cost  if  bids  should  be  called 
for  and  the  contract  let  to  the  lowest  bidder.  The  question  sub- 
mitted was  whether,  in  view  of  the  increased  cost  of  the  work,  if  done 
under  contract  with  the  lowest  bidder,  advertising  could  be  dispensed 
with  and  a  contract  entered  into  with  the  city  under  the  terms  above 
stated  for  doing  the  work. 

Held,  in  view  of  the  comparatively  large  amount  of  work  to  be 
done  by  the  city  and  the  necessary  expense  attendant  upon  bring- 
ing a  plant  to  the  site  of  the  work,  that  if  the  city  will  do  the  work 
required  by  the  War  Department  at  cost,  no  possible  advantage 
could  be  gained  by  the  Government  through  advertising;  that,  in 
other  words,  advertising  under  such  a  situation  w^ould  be  useless,  as 
it  would  be  impracticable  thereby  to  secure  competition,  and  hence 
there  would  be  no  legal  objection  to  entering  into  a  contract  with 
the  city  for  doing  the  work  at  the  price  per  cubic  yard  which  it 
would  cost  the  city. 

(76-124,  J.  A.  G.,  Feb.  T,  1916.) 


CONTRACTS :  Construction. 

^Vhere  a  contract  was  made  for  furnishing  such  quantities  of 
bituminous  coal  "  as  may  be  required  "  for  use  at  certain  designated 
posts  during  the  fiscal  year,  and  thereafter  the  National  Guard 
troops  were  called  into  the  active  service  by  the  President,  resulting 
in  greatly  increased  quantities  of  coal  being  required  at  said  posts 
over  the  estimated  requirements. 

Held,  that  the  contract  having  been  made  prior  to  the  calling  out 
of  the  militia  troops,  it  did  not  contemplate  the  possibility  of  the 
extraordinary  demands  incident  thereto,  and  the  excess  require- 
ments of  the  posts  due  to  the  presence  there  of  the  militia  troops  w^ere 
therefore  outside  of  the  obligations  of  the  contract  and  should  be 
provided  for  under  a  separate  contract  or  by  open-market  purchase, 
according  to  the  exigencies  of  the  service.  The  contractor  having 
asked  to  be  relieved  from  the  obligation  of  furnishing  more  than  the 
estimated  contract  requirements  due  to  the  increased  market  price  of 
coal. 

Held,  that,  while  he  was  under  no  obligation  under  his  contract  to 
make  further  deliveries  in  future,  yet,  in  respect  of  such  deliveries 
as  had  already  been  made,  the  same  having  been  called  for  and  de- 
livered as  a  contract  obligation,  the  department  could  grant  no 
relief. 

(76-GOO,  J.  A.  G.,  Feb.  14,  1917.) 


DISCHARGE:   EfPect  of  unauthorized  discharge. 

An  officer  of  the  National  Guard  of  Massachusetts  was  appointed 
mustermg  officer  for  the  special  purpose  of  mustering  out  of  Federal 
service  a  named  enlisted  man  of  the  National  Guard  of  Massa- 
chusetts. Through  misunderstanding,  a  blank  for  discharge  from 
the  Army  of  the^  United  States  was  completed  and  delivered,  citing 
the  mustering  officer's  authority  and  purporting  to  sever  the  connec- 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       661 

tion  of  the  enlisted  man  with  the  Army  of  the  United  States.  Did 
this  document  discharge  the  soldier  from  the  National  Guard? 

Held:  The  discharge  operated  only  to  muster  the  man  out  of 
Federal  service.  As  a  discharge  from  the  Army,  it  was  not  merely 
erroneously  given;  it  was  unauthorized  in  law  and  null.  It  could 
not  have  been  effective  to  sever  his  relation  with  the  National  (luard 
for  two  reasons — because  such  an  effect  was  unauthoi'ized  in  law; 
because  the  mustering  officer  had  been  delegated  no  power  to  con- 
summate such  a  severance  even  if  it  had  been  authorized. 

(58-052,  J.  A.  G.,  Feb.  24,  1917.) 


EX-OFFICERS :   Eecommissioning. 

Section  24  of  the  national-defense  act  provides :  "  That  the  Presi- 
dent may  recommission  persons  who  have  heretofore  held  commis- 
sions in  the  Regular  Army  and  have  left  the  service  honorably  after 
ascertaining  that  they  are  qualified  for  service  physically,  morally, 
and  as  to  age  and  militai-y  fitness."  Inquiry  was  made  whether  an 
ex -officer  who  had  been  discharged  for  failure  to  pass  an  examination 
for  promotion,  under  the  act  of  October  1,  1890  (26  Stat.,  562), 
could  be  recommissioned  under  section  24  (supra). 

Held^  that,  since  section  24  requires  "  military  fitness,"  and  since 
an  officer  discharged  under  the  act  of  1890  has  had  his  military  fit- 
ness tested  in  the  most  complete  manner  possible,  section  24  does 
not  contemplate  or  authorize  the  recommissioning  of  such  ex-officer. 

(64-221.4,  J.  A.  G.,  Feb.  13,  1917.) 


FIELD  CLERKS:   Heat  and  light  allowances. 

The  question  was  presented  whether  Army  field  clerks  and  field 
clerks,  Quartermaster  Corps,  were  entitled  to  heat  and  light  allow- 
ances in  public  quarters  which  they  are  authorized  to  occupy.  Such 
clerks  who  have  had  the  requisite  service  prescribed  in  the  act  of 
August  29, 1916,  creating  those  positions  are  by  the  statute  given  "  the 
same  allowances,  except  retirement,  as  heretofore  allowed  by  law 
to  pay  clerks.  Quartermaster  Corps." 

Held,  that  it  having  been  definitely  determined  that  no  provision 
was  made  by  law  for  furnishing  pay  clerks  with  fuel  and  light  at 
public  expense  in  public  quarters  (Buls.  of  1915;  No.  5,  p.  5,  and  No. 
21,  p.  7),  it  follows  that  the  field  clerks  are  not  entitled  to  such 
allowances.  As  in  the  case  of  pay  clerks,  Congress  had  made  specific 
provision  for  covvmutation  of  heat  and  light,  but  no  provision  has 
been  made  for  furnishing  these  allowances  in  kind. 

(72-310.3,  J.  A.  G.,  Feb.  8,  1917.) 


MEDALS  OF  HONOR:   Findings  of  board  under  section   122  of  national- 
defense  act. 

Certain  questions  were  submitted  as  to  the  construction  of  section 
122  of  the  national-defense  act,  approved  June  3,  1916,  providing 
for  the  appointment  of  a  board  of  retired  officers  to  investigate  and 


662   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

report  upon  past  awards  or  issues  of  the  so-called  congressional 
medals  of  honor  by  or  through  the  War  Department. 

Held,  that  as  the  statute  expressly  requires  that  "  m  any  case  m 
which  the  hoard  shall  find  and  report "  that  the  medal  was  issued  for 
riny  cause  other  than  that  specified  in  the  statute  "  the  name  of  the 
recipient  of  the  medal  so  issued  shall  be  stricken  permanently  from 
the  medal-of -honor  list,"  the  Secretary  of  War  is  without  discretion 
to  review  or  control  the  findings  of  the  board ;  that  the  law  requires 
f]-om  him  administrative  action  (1)  to  cause  the  name  of  the  recipient 
of  the  medal  which  the  board  finds  was  improperly  issued  to  be 
stricken  "permanently  from  the  official  medal-of-honor  list";  and 
(2)  if  the  recipient  "shall  still  be  in  the  Army"  to  require  him  to 
"return  said  medal  to  the  War  Department  for  cancellation";  and 
that  the  act  requires  the  Secretary  of  War  to  proceed  at  once  to  give 
execution  to  the  findings  of  the  board  in  these  respects  and  gives  him 
no  authority  to  postpone  action. 

Held  further^  that  although  the  provision  making  it  a  misdemeanor 
for  the  recipient  of  a  medal  of  honor  which  the  board  finds  was 
improperly  issued  to  wear  or  publicly  display  the  same  fails  to 
prescribe  a  penalty  fqr  the  offense,  nevertheless  the  statute  does  not 
charge  the  Secretarv  of  War  with  any  duty  to  enforce  this  provision. 

(46-112,  J.  A.  G.;  Feb.  7,  1917.) 


MEDICAL  DEPARTMENT:   Rank  of  sergeants,  first  class. 

Section  3  of  the  act  of  March  1,  1887  (24  Stat,  435),  provides 
that — 

"  Hospital  stewards  *  *  *  shall  have  rank  with  ordnance 
sergeants  and  be  entitled  to  all  allowances  pertaining  to  that  grade  " ; 
the  act  of  March  2, 1903,  that— 

"The  rank  *  *  *  of  sergeants,  first  class,  *  *  *  shall  be 
the  same  as  now  provided  by  law  for  hospital  stewards  *  *  *  " ; 
and  by  section  10  of  the  national  defense  act  the  term  "Hospital 
Corps  "  is  superseded  by  the  term  "  enlisted  force  of  the  Medical 
Department,"  comprising  all  grades  formerly  existing  in  the  Hos- 
pital Corps  and  several  new  grades,  and  provision  is  made  that — 

"  The  enlisted  men  of  the  Hospital  Corps  who  are  in  active 
service  at  the  time  of  the  approval  of  this  act  are  hereby  transferred 
to  the  corresponding  grades  of  the  Medical  Department  established 
by  this  act." 

Held^  that  there  is  now  no  law  requiring  sergeants,  first  class, 
Medical  Department,  to  be  graded  with  ordnance  sergeants,  the  pro- 
vision to  that  effect  having  been  omitted  from  the  national  defense 
act,  which  created  anew  the  grade  of  sergeant,  first  class.  Medical 
Department ;  and  that,  therefore,  it  is  not  in  contravention  of  statutes 
to  rank  sergeants,  first  class,  Medical  Department,  below  ordnance 
sergeants  in  amending  paragraph  9,  Army  Regulations. 

(6-227.1,  J.  A.  G.,  Jan.  13,  1917.) 


NATIONAIi  GUARD:    Clothing. 

The  governor  of  a  State,  referring  to  the  opinion  of  the  Judge 
Advocate  General  dated  November  4,  1916  (Bui.  53,  W.  D.,  1916), 
with  reference  to  charging  the  clothing  in  the  possession  of  the 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       663 

militia  on  their  muster  into  the  Federal  service  a«jainst  the  initial 
allowance  of  the  men,  submitted  the  following  questions : 

(a)  Whether  the  interpretation  of  the  law  as  given  in  the  said  opin- 
ion is  not  in  violation  of  paragraph  460,  Army  Regulations? 

(h)  Whether  it  does  not  have  the  effect  of  requiring  the  full  price 
of  clothing  issued  to  the  State  and  brought  with  the  National  Guard 
or  Organized  Militia  into  the  Federal  service  to  be  charged  against 
the  initial  allowance  of  the  enlisted  men? 

Held,  with  reference  to  (a),  that  the  requirement  as  stated  in  the 
said  opinion  of  the  Judge  Advocate  General  is  contrary  to  the  terms 
of  the  regulation,  but  that  the  law  requires  that  the  militia  while  in 
the  Federal  service  sJuiU  receive  the  same  pay  and  allowances  as 
Regular  troops,  and  as  Regular  troops  are  charged  with  the  clothing 
supplied  to  them  on  enlistment,  it  follows  that  the  clothing  wath 
which  the  militia  is  supplied  when  entering  the  Federal  service,  the 
clothing  having  been  furnished  by  the  Government,  must  be  charged 
to  them;  that  the  requirement  of  the  regulation,  being  inconsistent 
with  the  law,  must  give  way  to  the  law. 

Held,  wdth  respect  to  (5),  that  the  opinion  of  this  office  under  con- 
sideration does  not  require  the  clothing  to  be  charged  at  the  full  issue 
price  of  the  same,  but  that  if  the  clothing  is  worn  it  should  be 
charged  at  a  reduced  price  fixed  by  a  surveying  officer  in  view  of  its 
condition  at  the  time. 

(72-i20.2,  J.  A.  G.,  Dec.  15,  1916.) 


NATIONAL  GUARD:   Property  shortages. 

On  the  question  as  to  the  action  which  should  be  taken  to  relieve 
the  hardships  involved  in  holding  up  the  final  pay  accounts  of  offi- 
cers of  the  National  Guard  or  Organized  Militia  pending  the  de- 
termination of  their  responsibility  for  shortages  of  public  property. 

Held^  that  the  question  of  the  accountability  for  public  property 
is  one  to  be  determined  by  the  Secretary  of  War  under  the  act  of 
March  29,  1894  (28  Stat.,  457)  ;  that  there  is,  therefore,  no  legal  ob- 
jection to  modifying  the  regulations  so  as  to  relieve  the  hardships 
complained  of  so  far  as  practicable ;  and  that  such  hardships  can  be 
relieved,  with  due  regard  to  the  interests  of  the  United  States,  by 
modifying  the  regulations  so  as  to  permit  of  settlement  as  follows: 

{a)  As  to  officers  of  the  Organized  Militia  or  National  Guard  who, 
after  their  muster  out,  have  the  status  of  officers  of  the  National 
Guard  as  organized  under  the  act  of  June  3,  1916,  final  payment  to 
be  made  as  soon  as  the  status  of  the  complainant  as  an  officer  of  the 
National  Guard  is  fixed — the  Government  being  secured  by  the  right 
to  withhold  pay  accruing  to  the  officer  as  an  officer  of  the  National 
Guard  for  any  shortages  in  respect  of  which  it  may  be  finally  de- 
termined he  is  chargeable. 

(5)  As  to  officers  of  the  Organized  Militia  who,  upon  their  mus- 
ter out,  do  not  assume  the  status  of  officers  of  the  National  Guard  as 
organized  under  the  act  of  June  3,  1916,  partial  payments  be  made 
withholding  only  the  amount  for  which  the  preliminary  report  indi- 
cates that  the  officer  is  properly  accountable,  such  partial  payment 
to  be  made  when  the  complainant  has  signed  a  certificate  to  the  effect 
that  all  property  for  which  he  is  accountable  or  responsible  has  been 


664       DIGEST  OF  OPINIONS  OF  THE   JUDGE  ADVOCATE   GENERAL. 

used  for  the  benefit  of  the  Government,  etc.    Final  payment  should  be 
withlield  until  the  accountability  of  the  officer  is  finally  determined. 
(58-700,  J.  A.  G.,  Feb.  15,  1917.) 


NATIONAL  GUARD:   Legality  of  muster  out. 

AVhere  an  officer  of  the  headquarters  of  a  National  Guard  brigade 
was  mustered  out  in  Texas,  following  the  return  of  a  portion  of  the 
brigade  to  New  York  for  muster  out,  leaving  only  one  regiment  on 
(kity  in  Texas,  on  the  question  whether  it  was  legal  to  muster  him 
out  in  Texas  instead  of  returning  him  to  his  home  station  for  muster 
out. 

Held,  that  the  papers  indicate  that  the  muster  out  was  pursuant 
to  an  order  of  the  Secretary  of  War  issued  because  the  brigade  head- 
quarters, to  which  the  officer  in  question  belonged,  was  no  longer 
authorized,  the  brigade  being  reduced  by  the  muster  out  of  a  part 
thereof  to  a  single  regiment,  and  that  while  the  order  should  have  in- 
cluded the  brigade  headquarters,  there  could  be  no  question  of  the 
legality  of  the  muster  out  of  the  officer  in  Texas  under  the  orders 
issued  in  this  case. 

(58-301,  J.  A.  G.,  Feb.  20,  1917.) 


NATIONAL  GUARD  ORGANIZATION:   General  exceptions. 

Section  60  of  the  national-defense  act  provides : 

"  The  composition  of  the  National  Guard,  including  the  composi- 
tion of  all  units  thereof,  shall  be  the  same  as  that  which  is  or  may 
hereafter  be  prescribed  for  the  Regular  Army,  subject  in  time  of 
peace  to  such  general  exceptions  as  Tnay  he  authorized  hy  the  Secre- 
tary of  Wary 

Request  was  made  on  behalf  of  a  number  of  medical  officers  of  the 
National  Guard  in  Federal  service  who  had  been  denied  the  pay  of 
captain,  on  the  ground  that  they  had  not  had  the  required  number 
of  years  of  service,  that  the  Secretary  of  War,  under  his  power  given 
by  the  foregoing  statutes  to  make  "  general  exceptions,"  authorize 
them  to  be  recognized  as  captains  and  to  receive  the  pay  of  that 
gi'ade, 

Ileld^  that  the  term  "  exception,"  in  section  60,  is  used  in  the  sense 
of  exclusion,  that  it  does  not  include  substitution,  that  the  Secretary 
of  War  could  only  authorize  modification  by  way  of  exclusion,  and 
that  the  request  could  not,  therefore,  be  granted. 

(58-210,  J.  A.  G.,  Jan.  13,  1917.) 


NATIONAL    GUARD    RESERVE    OFFICERS:   Appointment    in    Regular 
Army. 

Inquiry  was  made  whether  commissioned  officers  of  the  National 
Guard  Reserve  are  included  in  the  expression  "  commissioned  officers 
of  the  National  Guard,"  designated  by  section  24  of  the  national- 
defense  act  as  the  fourth  class  in  the  order  of  appointment  to 
vacancies  in  the  grade  of  second  lieutenant. 


DIGEST  OF  OPINIONS  OF  THE  JUI>GE  ADVOCATE  GENERAL.       665 

Ileld^  that  section  GO,  relating  to  the  period  of  enlistment,  and  sec- 
tion 70,  prescribing  the  oath  of  enlistment,  as  well  as  other  sections 
of  the  national-defense  act,  indicate  clearly  that  the  term  "  National 
Guard  "  includes  an  active  and  a  reserve  force,  and  that  unless  the 
context  indicates  a  diii'erent  meaning  the  term  "National  Guard" 
should  be  construed  as  including  the  National  Guard  Reserve.  The 
question  was  answered  in  the  ailirmative. 

(64-213.3,  J.  A.  G.,  Feb.  3,  1017.) 


POSSE  COMITATUS :   Regular  officers  serving  under  commissions  in  Na- 
tional Guard. 

On  the  question  raised  as  to  Avhether  section  15  of  the  act  of  June 
18,  1878  (20  Stat.,  152),  forbidding  the  employment  of  any  part  of 
the  Army  as  a  posse  comitatus  or  otherwise  to  enforce  the  laws,  ex- 
cept where  expressly  authorized  by  Congress,  would  preclude  an 
officer  of  the  Regiilar  Army  serving  under  a  commission  in  the  Na- 
tional Guard  from  serving  with  the  National  Guard  in  case  of  an 
emergency  causing  the  governor  to  call  out  the  same. 

Held,  that  as  section  100  of  the  national-defense  act,  approved 
June  3,  1916,  authorizes  officers  of  the  Regular  Army  detailed  to 
duty  with  the  National  Guard  to  "  accept  commissions  in  the  Na- 
tional Guard,  with  the  permission  of  the  President,  determinable  in 
his  discretion,"  and  as  section  61  of  the  same  act  recognizes  the  rights 
of  the  States  "  in  the  use  of  the  National  Guard  within  their  respec- 
tive borders  in  time  of  peace,"  the  service  of  the  regular  officer  under 
his  commission  as  an  officer  of  the  National  Guard  would  not  be  a 
violation  of  the  posse  comitatus  act;  that  while  holding  a  commis- 
sion in  the  National  Guard  under  authority  of  the  act  of  June  3, 
1916,  he  would  be  under  orders  of  the  governor  of  the  State,  and 
for  the  time  being  his  status  as  a  regular  officer  would  be  in  abey- 
ance; and  that  as  an  officer  of  the  National  Guard  he  would  be  sub- 
ject to  the  lawful  orders  of  the  governor  of  the  State. 

(64-312.4,  J.  A.  G.,  Jan.  18,  1917.) 


PUBLIC  PROPEHTY:   Lease  of. 

Bids  having  been  invited  for  the  lease  of  grazing  privileges  on  a 
target  and  maneuver  reservation,  under  the  act  of  July  28,  1892,  on 
the  question  raised  whether  it  would  be  legal  to  pass  over  the  highest 
bid  in  favor  of  the  alternative  bid  of  another  bidder  containing  con- 
ditions materially  cliiferent  from  those  stated  in  the  advertisement. 

Held,  that,  if  the  legality  of  the  proposed  action  be  tested  by  the 
decisions  under  statutes  regarding  advertising  in  the  making  of 
Government  contracts,  it  would  not  be  legal  to  accept  the  alternative 
bid,  but  that  as  the  Secretary  of  War  in  making  leases  under  this 
statute  may  advertise  or  not,  in  his  discretion,  it  would  not  be  illegal 
to  accept  the  alternative  bid.  Upon  submission  of  the  question  to 
the  Secretary  of  War  for  decision  as  to  the  course  to  be  adopted  in 
this  class  of  cases,  it  was  ordered  that  the  highest  legal  bid  be 
accepted  after  advertising  in  the  present  and  future  cases. 

(80-722,  J.  A.  G.,  Feb.  10,  1917.) 


666       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

KETIRED  OPFICEBS:   Members  of  courts-martial. 

A  retired  officer  having,  by  direction  of  the  Secretary  of  War, 
been  detailed  as  quartermaster  under  the  act  of  April  23,  1904  (33 
Stat.,  264),  providing  that — 

"  The  Secretary  of  War  may  assign  retired  officers  of  the  Army, 
with  their  consent,  to  active  duty  in  recruiting  for  service  in  connec- 
tion with  the  Organized  Militia  in  the  several  States  and  Territories 
upon  the  request  of  the  governor  thereof,  as  military  attaches,  upon 
courts-martial,  courts  of  inquiry  and  boards,  and  to  staff  duty  not 
involving  service  with  troops,"  was  appointed,  by  an  officer  exercising 
general  court-martial  jurisdiction,  as  member  of  a  general  court- 
martial. 

Ileld^  that  the  act  of  1904  contemplates  that  the  Secretary  of  War 
shall  exercise  his  discretion  with  respect  to  the  retired  officer  and  the 
particular  active  duty  to  which  such  officer  shall  be  assigned;  that 
it  does  not  provide  for  a  general  active-duty  status ;  and  that  if  it  is 
desirable  to  have  the  officer  act  as  a  member  of  a  court-martial  the 
Secretary  of  War  may  assign  him  to  active  duty  upon  courts-martial 
in  addition  to  his  duties  as  quartermaster. 

Held  further^  that  although  the  appointment  of  the  officer  as  a 
member  of  the  court  was  irregiilar  the  trials  on  which  he  sat  as  a 
member  should  not  be  regarded  as  invalid,  since  he  was  competent  in 
law  to  sit  as  a  member  of  a  court-martial. 

(88-613,  J.  A.  G.,  Jan.  24,  1917.) 


VETERINARY  CORPS:   Credit  for  "  governmental  service." 

Upon  an  inquiry  whether  an  assistant  veterinarian  appointed 
imder  the  provisions  of  section  16  of  the  national  defense  act  might 
receive  credit  for  service  in  the  Bureau  of  Animal  Industry  as  "  Gov- 
ernmental service,"  within  the  meaning  of  that  section, 

Held.,  that  since  the  national  defense  act  as  a  whole  relates  to  mat- 
ters under  the  control  of  the  War  Department,  it  must  be  assumed 
that  any  term  employed  in  the  section  above  referred  to  which  de- 
scribes service  in  a  more  general  way  than  the  term  "military  serv- 
ice "  must  be  construed  to  cover  other  service  under  the  War  Depart- 
ment only,  rather  than  to  extend  the  operation  of  the  statute  to  other 
departments  of  the  Government,  and  therefore  bej'ond  the  general 
purview  of  the  act;  and  that,  therefore,  service  in  the  Bureau  of 
Animal  Industry  can  not  be  counted  as  "  Governmental  service " 
within  the  meaning  of  section  16  of  the  national  defense  act. 

(6-133,  J.  A.  G.,  Jan.  26,  1917.) 


VETERINARY  CORPS:   Persons  included  in. 

Upon  inquiry  whether  veterinarians  of  Cavalry,  Field  Artillery, 
and  the  Quartermaster  Corps  who  have  been  recommended  for  com- 
missions in  the  Veterinary  Corps  established  by  section  16  of  the 
act  of  June  3,  1916,  are  to  be  considered  members  of  the  Veterinary 
Corps  pending  the  issue  of  their  commissions, 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEEAL.       667 

Ileld^  that  the  hinguage  of  the  section  referred  to  defines  the  Vet- 
erinary Corps  as  consisting  of  "said  veterinarians  and  assistant 
veterinarians,"  and  these  words  can  relate  only  to  the  veterinarians 
and  assistant  veterinarians  whose  appointments  have  been  provided 
for  in  the  preceding  clauses.  The  words,  "  including  veterinarians 
now  in  the  service,"  are  employed  in  the  section  only  for  the  purposes 
(1)  of  limiting  the  number  of  officers  who  may  be  appointed  veteri- 
narians and  assistant  veterinarians  under  the  terms  of  the  section, 
and  (2)  of  indicating  that  the  discharge  of  veterinarians  then  in  the 
service  was  not  required;  and  do  not  have  the  effect  of  including  the 
"veterinarians  now  in  the  service"  in  the  Veterinary  Corps,  which 
the  section  plainly  constitutes  through  new  appointment. 

(&-133,  J.  A.  G.,  Jan.  26,  1917.) 


SUPPLY  COMPANY:   Commanding  officer  of. 

A  captain  of  Infantry  was  appointed  quartermaster  of  his  regi- 
ment on  March  17,  1913,  effective  March  18,  1913,  and  served  con- 
tinuously as  quartermaster  and  commanding  officer  of  the  supply 
company.  Upon  inquiry  by  the  commanding  officer  of  the  regiment 
as  to  whether  he  must  be  relieved  from  such  duty  on  March  17,  1917, 

ricld^  that  the  commanding  officer  of  the  supply  company  in  an 
Infantry  regiment  is  a  staff  officer  within  the  meaning  of  Army  Regu- 
lations 249,  and  his  tour  of  duty  as  such,  taken  in  connection  with 
any  prior  service  as  a  regimental  staff  officer,  can  not  exceed  four 
years. 

(6-124.23,  J.  A.  G.,  Feb.  17,  1917.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Digests  prepared  in  the  oflBce  of  tbe  Judge  Advocate  General.) 

APPROPRIATIONS:   Proceeds    from    sale    of    unsuitable    quartermaster 
stores. 

It  was  proposed  to  sell,  after  due  public  notice,  a  large  quantity 
of  nonregulation  shoes  purchased  in  the  emergency  of  the  mobiliza- 
tion of  the  National  Guard,  but  never  issued  because  it  became  pos- 
sible to  obtain  shoes  of  the  regulation  pattern,  and  the  question  was 
presented  whether  the  proceeds  from  such  a  sale  could  be  deposited 
to  the  credit  of  the  appropriation  from  which  the  shoes  were  pur- 

Held,  that  the  act  of  March  23, 1910  (33  Stat.,  257),  relating  to  the 
deposit  of  proceeds  from  sales  of  serviceable  supplies  or  stores  is  not 
an  authority  for  the  sale  of  property,  nor  does  it  apply  to  property 
sold  to  the  general  public ;  that  there  exists  no  authority  of  law  for 
the  sale  of  serviceable  quartermaster  supplies  to  the  public  generally, 
and  that  if  the  shoes  be  classed  as  "  unsuitable  for  the  public  service  " 
and  sold  as  provided  by  section  1241,  Revised  Statutes,  the  proceeds 
must,  under  the  general  legislation  in  section  3618,  Revised  Statutes, 
be  covered  into  the  Treasury  as  miscellaneous  receipts. 
(Comp.  of  the  Treas.,  Feb.  19,  1917.) 


668       DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

ARMY  FIELD  CLERKS:   Allowances. 

IleU,  that  under  the  provisions  of  the  statute  providing  for  200 
Army  field  clerks  a  selection  was  necessary,  and  the  statute  was  not, 
therefore,  self -executing;  consequently  such  clerks  were  entitled  to 
the  allowances  therein  provided  for  only  from  the  date  of  their 
acceptance  of  appointment  as  field  clerks  and  not  from  the  date  of  the 
act,  August  29,  1916. 

(Comp.  of  the  Treas.,  Jan.  26,  1917.) 


ENLISTED  MEN:   Pay  status  of  retired  soldier  under  an  enlistment  in 
the  National  Guard. 

In  the  case  of  an  enlisted  man  on  the  retired  list  of  the  Regular 
Army,  with  pay  status  of  the  seventh  enlistment  period,  who  enlisted 
in  the  National  Guard  and,  upon  the  President's  call  of  June  18, 
1916,  was  accepted  and  mustered  into  the  service  of  the  United 
States, 

Held^  that  the  soldier  did  not  lose  his  continuous-service-pay  status 
while  in  the  active  service  of  the  United  States  as  an  enlisted  man 
of  the  National  Guard  under  the  President's  call,  but  was  entitled  to 
the  pay  of  his  grade  in  the  National  Guard  as  of  the  seventh  enlist- 
ment. 

Held  further^  that  the  soldier  forfeited  his  right  to  retired  pay 
during  the  period  he  remained  in  the  active  service  of  the  United 
States  under  his  enlistment  as  a  member  of  the  National  Guard. 
(Comp.  Treas.,  Feb.  9,  1917.) 


CIVILIAN  EMPLOYEES:    Computation  of  holiday  pay  of  pieceworker. 

In  respect  of  the  President's  order  of  June  9,  1914,  fixing  four 
hours  as  a  day's  work  on  Saturdays  from  June  15  to  September  15  of 
each  year  for  all  clerks  and  other  employees  of  the  Government, 
except  as  therein  provided, 

Held^  that  under  the  said  Executive  order  four  hours  constitutes  a 
day's  work  on  Saturdays  within  the  period  specified  in  the  order,  and 
that,  as  all  employees  under  the  order  are  entitled  to  a  full  day's 
compensation  for  four  hours'  work,  an  employee  paid  on  a  piecework 
basis  should  be  paid  the  same  as  if  he  had  worked  the  full  eight 
hours  on  Saturdays ;  that  is  to  say,  according  to  his  average  earnings. 

(Comp.  Treas.,  Jan.  15,  1917.) 


CLAIMS:   Private  property  destroyed. 

In  the  case  of  an  officer  whose  private  property  was  destroyed  by 
fire  in  quarters  rented  by  him  at  his  own  expenses  and  for  his  own 
convenience, 

Ileld^  that  the  officer  was  not  entitled  to  compensation  for  the  loss 
under  the  provisions  of  the  act  of  March  3,  1885  (23  Stat.,  350), 
which  act  was  intended  to  compensate  officers  and  enlisted  men  for 
the  destruction  of  their  property  through  the  casualites  usually 
attending  military  life  and  peculiar  thereto,  and  was  not  intended 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       669 

to  make  the  Government  liable  for  such  risks  as  are  common  to  per- 
sons in  civil  life. 

(23  Comp.  Dec,  411.) 

COMPTROLLER  OF  THE  TREASURY:   Jurisdiction. 

In  the  case  of  a  disallowance  by  the  auditor  of  $13.75  in  a  disburs- 
in*y  officer's  accounts  on  account  of  an  alleged  overpayment  to  another 
officer,  the  latter  refunded  the  amount  upon  the  request  of  the  dis- 
bursing officer  but  at  the  same  time  requested  that  the  case  be  sub- 
mitted to  the  comptroller  for  a  review  of  the  auditor's  action.  The 
War  Department  having  complied  with  tlie  officer's  request, 

Ileld^  by  the  comptroller,  that  the  refundment  having  been  made, 
the  auditor  was  authorized  to  credit  the  disbursing  officer's  accounts 
with  the  sum  so  refunded,  and  that  there  was  therefore  no  ground 
for  an  appeal  as  to  such  settlement.  Advised,  however,  that  the 
papers  would  be  forwarded  to  the  auditor  who  had  authority  to  settle 
the  officer's  claim  for  repayment  of  the  sum  refunded  by  him,  and 
that  if  after  such  settlement  the  officer  be  dissatisfied  with  the 
auditor's  action  he  could  appeal  to  the  comptroller. 

(Comp.  Treas.,  Jan.  29,  1917.) 


DECISIONS  OF  THE  COTJIITS. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

HORSES:  Claims  for  loss  of,  in  military  service. 

In  a  decision  of  the  Court  of  Claims  of  January  17,  1916,  in 
Gri-ffts  V.  United  States^  it  was  held,  overruling  decision  in  the  Hcvnlie 
ease  (39  C.  Cls.,  250),  that  section  3482,  Revised  Statutes,  as  amended 
by  the  act  of  June  22,  1874,  and  subsequent  acts,  authorizing  the  re- 
imbursement of  officers  for  horses  lost  in  the  military  service,  had 
expired  by  limitation  and  no  longer  authorized  such  reimbursement. 
(Bui.  No.  8,  W.  D.,  1916,  p.  13.)     Upon  a  rehearing, 

Ileld^  That  only  for  the  purposes  of  the  act  of  1874  was  section 
3482,  Revised  Statutes,  amended,  and  that  after  the  act  of  1874  ex- 
pired by  its  limitation,  section  3482,  Revised  Statutes,  continued  in 
force  unaffected  by  the  1874  act  and  still  remains  in  force.  The 
former  opinion  in  this  case  was  modified  accordingly.  Section  3482, 
Revised  Statutes,  authorizes  payment  for  horses  killed  in  battle 
or  lost  under  certain  other  described  contingencies. 

{Frank  C.  GHifis  v.  United  States,  decided  by  C.  Cls.,  Feb.  5, 1917.) 


PRIVATE  PROPERTY:   Destruction  of  by  military  forces. 

Where  militia  troops  were  ordered  out  by  the  governor  of  a  State 
for  the  purpose  of  restoring  peace  and  order  in  a  county  declared  by 
him  to  be  in  a  state  of  insurection,  and  the  commanding  officer  of 
the  militia  ordered  all  saloons  closed  in  a  city  in  the  troubled  area 
between  7  p.  m.  and  8  a.  m.,  with  the  warning  that  "  the  stock  of 
liquors  of  any  person  or  persons  violating  this  rule  will  be  destroyed 


670   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

and  all  violators  severely  punished,"  and  the  stock  of  liquors  of  a 
saloon  keeper  was  destroyed  by  subordinate  officers  because  of  the 
violation  of  the  order, 

Eeld^  by  the  Supreme  Court  of  Montana  in  a  civil  action  against 
the  commanding  officer  and  his  subordinates  for  damages,  that  the 
officers  could  not  justify  their  act  as  a  military  necessity,  there  having 
existed  no  state  of  war  and  the  liquors  not  being  needed  for  or 
devoted  to  the  use  of  the  troops;  that  the  destruction  could  be  justi- 
fied, if  at  all,  only  as  a  proper  exercise  of  the  police  power  of  the 
State  to  maintain  order,  etc.,  but  the  destruction  of  private  property 
under  this  power  without  compensation  to  the  owner  must  be  the 
last  resort,  available  only  in  the  presence  of  imminent  danger  and 
overwhelming  necessity  which  brooks  no  delay,  and  that,  as  it  was 
not  alleged  that  the  rioters  wxre  threatening  or  about  to  break  into 
the  saloon  to  obtain  intoxicants,  thereby  making  it  necessary  to  de- 
stroy the  stock  to  prevent  excesses,  such  justification  was  not  shown. 

Held  further^  that  the  subordinate  militia  officers  who  merely  fol- 
lowed their  superior  officer's  commands  in  destroying  the  offending 
saloon  keeper's  stock  were  not  subject  to  civil  liability,  since  the  order 
for  the  destruction  of  the  property  was  one  which  the  commanding 
officer  might  lawfully  have  made  had  the  circumstances  of  the  case 
warranted  it,  and,  as  it  was  valid  on  its  face,  the  subordinate  officers 
could  not  refuse  obedience  until  they  had  investigated  the  legality 
of  the  order.    Judgment  against  the  commanding  officer. 

{Eerlihy  v.  Donohue,  et  al.,  Sup.  Ct.  of  Montana,  Nov.  10,  1916.) 


BULLETIN   18. 

BtTLLETix  1  WAR  DEPARTMENT, 

No.  18.    J  Washington,  April  6, 1917. 

The  following  digest  of  opinions  of  the  Judge  Advocate  General 
of  the  Army,  for  the  month  of  March,  1917,  and  of  certain  decisions 
of  the  Comptroller  of  the  Treasury  and  of  courts,  together  with  notes 
on  military  justice  prepared  under  the  direction  of  the  Judge  Advo- 
cate General,  and  a  compilation  of  P'ederal  and  State  laws  prohibit- 
ing discrimination  against  the  uniform,  is  published  for  the  informa- 
tion of  the  service  in  general. 
[2526413  B— A.  G.  O.] 
By  order  or  the  Secretary  of  War  : 

H.  L.  SCOTT, 
Major  General,  Chief  of  Staff. 
Official  : 

H.  P.  McCAIN, 

The  Adjutant  Generali 


OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

AVIATION  PAY:   OflS^cers'  Reserve  Corps. 

Upon  reference  for  opinion  as  to  whether  or  not  officers  of  the 
aviation  section,  Signal  Officers'  Reserve  Corps,  when  assigned  to 
duty  requiring  them  to  make  regular  and  frequent  aerial  flights,  are 
entitled  to  the  extra  pay  authorized  under  section  13  of  the  national 
defense  act,  approved  June  3,  1916. 

Held,  that  as  section  39  of  the  same  act  provides  that  Reserve 
Corps  officers,  when  ordered  "  to  duty  with  troops  or  at  field  exercises, 
or  for  instruction,"  when  provision  is  made  therefor,  shall,  while  so 
serving,  "receive  the  pay  and  allowances  of  their  respective  grades 
in  the  Regidar  Army,"  and  as  section  13  of  said  act  specifically  pro- 
vides, with  respect  to  aviation  officers,  that  "  each  aviation  officer  au- 
thorized by  this  act  shall,  while  on  duty  that  requires  himto  partici- 
pate regularly  and  frequently  in  aerial  flights,  receive  an  increase  of 
twenty-five  per  centum  in  the  pay  of  his  grade  and  length  of  service 
under  his  commission,"  a  Reserve  Corps  officer  of  the  aviation  sec- 
tion assigned  to  active  duty  requiring  him  to  make  regular  and  fre- 
quent aerial  flights  is  entitled  to  receive  the  increased  pay  authorized 
for  such  duty,  as  such  officer  comes  within  the  description,  "each 
aviation  officer  authorized  by  this  act." 

(6-301,  J.  A.  G.,  Mar.  12,  1917.) 


CHATJFFETJIIS :   Procurement  of  local  licenses. 

The  decision  of  the  Comptroller  of  the  Treasury  dated  January  10, 
1917  (23  Comp.  Dec,  286),  is  conclusive  that  existing  Federal  appro- 

671 


672   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENEEAL. 

priations  are  not  available  for  the  payment  of  license  fees  of  chanf- 
feiirs  for  the  operation  of  Government  motor  vehicles.  Whether  the 
States  have  the  power  to  require  such  chauffeurs  to  provide  them- 
selves with  licenses  at  their  own  expense,  such  expense  being  the  cost 
of  issuing  the  licenses  by  the  State,  has  not  been  authoritatively  set- 
tled, but 

Held,  that  the  Panama  Canal  authorities,  having  no  power  not  con- 
ferred by  Congress,  clearly  are  not  authorized  to  require  individuals 
to  obtain  licenses  as  a  prerequisite  to  the  operation  of  Government 
vehicles,  no  such  power  having  been  granted  by  Congress.^  Sug- 
gested, however,  that  as  a  rule  the  Government  should,  in  the  interest 
of  public  safety  and  as  a  matter  of  comity,  use  diligence  to  see  that 
its  chauffeurs  meet  the  usual  local  tests  as  to  qualification,  etc.,  and 
should  .provide  them  with  evidence  that  they  have  been  found 
qualified. 

(92-525,  J.  A.  G.,  Mar.  16,  1917.) 


CIVILIAN  EMPLOYEES:   Stoppages  to  reimburse  United  States. 

Where  an  applicant  for  enlistment  was  furnished  transportation 
and  subsistence  from  a  recruiting  office  to  the  recruit  depot  and,  in- 
stead of  presenting  himself  for  enlistment  at  the  latter  place,  disap- 
peared therefrom  and  afterwards  obtained  employment  as  a  laborer 
at  the  Kock  Island  Arsenal, 

Held',  that  aside  from  any  criminal  action  that  might  be  taken 
against  the  man  on  a  charge  of  misappropriating  Government  prop- 
erty, deduction  should  be  made  from  his  pay  earned  as  laborer  at  the 
arsenal  to  reimburse  the  United  States  the  amount  expended  on  him 
in  connection  with  his  application  for  enlistment,  this  being  war- 
ranted whether  his  action  be  regarded  as  a  breach  of  contract  or  as 
the  procurement  of  the  expenditures  under  false  pretenses. 

(72-510,  J.  A.  G.,  Mar.  21,  1917.) 


CLAIMS:   Use  of  private  property  in  public  service. 

Claim  was  made  by  certain  National  Guard  officers  for  reimburse- 
ment of  expenses  incurred  for  gasoline  and  lubricating  oil  for  motor 
cars  belonging  to  the  State  and  to  militia  organizations  and  to  indi- 
viduals used  in  the  service  of  the  United  States.  None  of  such  cars 
had  been  formally  transferred  to  the  Federal  service,  but  were  taken 
with  the  organizations  upon  their  being  called  into  the  Federal  serv- 
ice without  the  knowledge  or  consent  of  the  Quartermaster  General, 
who  had  made  provision  for  the  hiring  of  motor  cars  when  necessary. 

Held,  that  the  claim  could  not  be  allowed  in  the  absence  of  a  show- 
ing that  the  expense  was  incurred  as  the  result  of  an  emergency,  it 
being  a  well-settled  principle  that  the  United  States  can  not  be  made 
a  debtor  without  its  knowledge  and  consent,  and  that,  except  for  cer- 
tain personal  expenses,  officers  of  the  Government  are  not  entitled  to 
reimbursement  for  expenditures  made  from  their  own  private  funds 
to  pay  legitimate  expenses  of  the  Government  unless  such  expendi- 
tures are  made  under  urgent  and  unforeseen  public  necessity  (12 
Comp.  Dec,  308).    If  at  any  time  the  transportation  facilities  fur- 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       673 

nished  by  the  Government  failed,  and  it  became  necessary  to  use  the 
automobiles  belonging  to  the  State  and  to  individuals  and  organiza- 
tions in  the  ser\ice  of  the  United  States  and  they  were  so  used  in 
pursuance  of  competent  orders,  under  such  circumstances  the  ex- 
penses for  their  maintenance  and  operation  would  be  a  proi)or  charge 
against  the  Government  and  payable  from  Army  appropriations. 
Snch  obligation  would  arise  under  an  implied  contract,  and  no  formal 
contract  nunc  pro  tunc^  such  as  suggested  in  this  case  would  be  neces- 
sary. But  in  no  case  where  there  was  not  an  absolute  emergency 
which  required  the  practical  taking  over  of  the  motor  cars  by  the 
TTnited  States  for  operation  Tinder  its  supervision  can  reimbursement 
legallv  be  made  for  anv  expense  in  connection  therewith. 
(18-600,  J.  A.  G.,  Feb.  24,  1917.) 


CONTRACTS:    Extra  work  due  to  faulty  desig-n. 

The  contractors  for  the  construction  of  a  wharf  submitted  a  claim 
for  extra  work  required,  before  the  completion  of  the  wharf,  to  rej:)air 
damages  thereto  caused  by  the  sliding  of  the  bank  carrying  the  foot- 
ings of  the  piles  outward,  causing  the  outer  end  of  the  wharf  to  settle 
below  the  required  grade.  At  the  time  of  the  damage  the  wharf  was 
completed,  with  the  exception  of  certain  braces,  which  could  not  be 
placed  within  the  contract  period  because  of  the  high  water.  The 
wharf  was  constructed  strictly  in  accordance  with  the  specifications 
and  at  the  location  designated  by  the  post  quartermaster.  The  con- 
tractors were  required,  against  their  protest,  to  remove  the  damaged 
portion  of  the  wharf  and  rebuild  the  same  strictly  in  accordance 
with  the  contract,  and  they  have  submitted  their  claim  covering  the 
extra  work  involved,  on  the  crround  that  they  were  in  no  way  respon- 
sible for  the  loss.  The  district  engineer  officer  reports  that  the  com- 
pleted wharf,  while  not  in  immediate  danger  of  loss,  is  liable  to 
settle  after  each  high  water,  and  that  it  will  probably  be  necessary  to 
uncouple  the  floor  of  the  same  and  raise  it  each  year. 

Held^  in  view  of  the  facts  stated  above,  that  the  case  is  one  where 
the  damages  appear  to  be  the  result  of  defective  design,  and  that 
there  being  nothing  in  the  contract  which  could  be  fairly  construed 
as  making  the  contractors  responsible  for  the  design,  the  extra  work 
was  due  to  the  fault  of  the  Government  in  requiring  the  work  to  be 
done  on  plans  which  were  defective  for  the  location  selected;  citing 
0  C.  J.,  752,  and  8  L.  R.  A.,  N.  S.,  1171. 

(76-700,  J.  A  G,  Mar.  23,  1917.) 


CONTRACTORS:   Relief  of. 

A  contractor  for  furnishing  packing  and  waste  applied  for  the  C4in- 
cellation  of  its  contract  on  the  ground  that  folloAving  the  making 
thereof  the  demand  for  skilled  labor  and  for  the  materials  required 
for  filling  the  contract,  due  to  the  continuation  of  the  war  in  Europe, 
made  it  practically  impossible  for  the  contractor  to  execute  the  con- 
tract, and  that  the  contractor,  a  company  of  limited  means,  would 
be  required  to  suspend  business  unless  relief  be  granted.  The  con- 
tract was  an  absolute  one,  binding  the  contractor  to  furnish  the  sup- 

93668°— 17 43 


674   DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL. 

plies  covered  thereby  as  ordered  to  meet  the  requirements  therefor 
during  the  fiscal  year,  and  contained  no  exception  under  which  the 
contractor  would  be  entitled  to  relief  on  the  ground  applied  for. 

Held^  that  the  facts  stated  did  not  make  out  a  case  of  impossi- 
bility of  performance  such  as  would  entitle  the  contractor  to  relief; 
the  established  rule  of  law  in  such  cases  being  where  an  agreement 
is  not  impossible  in  its  nature  but  is  impossible  in  fact  by  reason  of 
particular  circumstances,  such  impossibility  will  not  excuse  the  fail- 
ure to  perform  an  unconditional  contract,  whether  it  exists  at  the 
date  of  the  contract  or  arises  from  events  which  happen  afterwards; 
still  less  will  unexpected  difficulty  or  inconvenience  short  of  impossi- 
bility serve  as  an  excuse.  Wald's  Pollock  on  Contracts,  Williston";; 
edition,  1906,  page  527,  and  cases  cited  in  note  on  page  528. 

Helcl^  also,  that  the  Secretary  of  War  is  without  legal  authority 
to  grant  relief  on  the  ground  of  hardship,  and  that  relief  can  only 
be  given  where  the  case  falls  within  a  rule  of  law  under  which  the 
contractor  is  entitled  to  relief,  or  where  relief  is  authorized  by  Con- 
gress. (Dicr.  Op.  J.  A.  G.,  926,  and  notes  citing  opinion  of  Atty.  Gen. 
Black  in  9  Op.,  81) 

(76-600,  J.  A.  G.,  Mar.  10,  1917.) 


EIGHT-HOUR  LAW:    Claim  for  overtime. 

A  civilian,  employed  with  his  team  at  a  mobilization  camp  for  the 
use  of  troops  called  into  the  Federal  service,  submitted  a  claim  for 
pay  for  "  overtime,"  in  excess  of  eight  hours  a  day.  He  was  em- 
ployed with  the  understanding  that  he  would  receive  the  same  rate 
of  pay  as  the  other  teamsters,  which  was  $5  a  day.  The  other  team- 
sters neither  claimed  nor  were  paid  for  overtime  in  excess  of  eight 
hours  a  day. 

Held^  that  his  claim  was  not  payable  for  the  following  reasons : 

The  act  of  August  1,  1892  (27' Stat.,  340),  expressly  permits  the 
employment  of  "  laborers  and  mechanics  "  for  more  than  eight  hours 
a  day  in  case  of  "  extraordinary  emergency."  The  mobilization  of 
the  militia  troops  was  an  emergency  within  the  meaning  of  this  act. 
The  Federal  eight-hour  statutes  do  not  regulate  compensation  (Z7.  aS'. 
V.  Martin^  94  U.  S.,  400),  and  whenever,  therefore,  it  is  lawful  to 
employ  a  laborer  or  mechanic  for  more  than  eight  hours  a  day,  the 
per  diem  compensation  may  be  fixed  by  agreement  for  the  lengthened 
day.  The  claimant,  having  been  promised  upon  his  employment  the 
same  compensation  that  was  paid  to  the  other  teamsters,  had  notice 
of  what  constituted  a  day's  work  under  his  employment,  and  was, 
therefore,  entitled  to  the  same  compensation  as  the  other  teamsters 
received  and  no  more,  provided  that  for  the  time,  if  any,  which  he 
worked  in  excess  of  the  others,  he  would  be  entitled  to  pro  rata 
compensation. 

(58-150,  J.  A.  G.,  Feb.  27,  1917.) 


E3^LISTED  MEN:   Discharge  for  convenience  of  the  Government. 

An  honorable  discharge  of  an  enlisted  man  because  of  disability 
is  a  discharge  for  the  convenience  of  the  Government,  and  if  the 
soldier  has  served  more  than  one-half  of  his  enlistment  prior  to  such 


DIGEST  OF   OPINIONS  OF   THE  JUDGE  ADVOCATE   GENERAL.       675 

discharge,  he  is  entitled,  in  case  he  recovers  and  reenlists,  to  the 
benefits  of  the  act  of  May  11,  1908  (35  Stat.,  110),  relating  to  con- 
tinuous-service pay  and  bonus  for  reenlistment,  according  to  the  con- 
ditions therein  prescribed. 

(72-220,  J.  A.  (}.,  Mar.  22,  1917.) 


ENLISTED  MEN:    Examination  for  commission,   National   Guard  service. 

On  the  question  whether  an  enlisted  man  of  the  National  Guard, 
proposing  to  transfer  to  the  Regular  Army,  could  count  his  Na- 
tional Guard  service  as  a  part  of  the  required  service  to  qualify  him 
for  the  examination. 

Held,  that  while  the  act  of  July  30,  1892  (27  Stat.,  336),  specified 
service  "  in  the  Army,"  the  service  described  by  tliis  term  undoubtedly 
meant  service  in  the  Eegular  Army,  and  that  Federal  service  by  a 
National  Guard  soldier  can  not  therefore  be  credited  to  qualify  the 
soldier  for  the  examination.  This  view  is  supported  by  the  act  of 
February  2,  1901,  section  28  of  which  provides  for  the  same  recog- 
nition to  be  given  to  volunteer  as  to  regular  service,  a  provision  which 
would  be  unnecessary  if  the  term  "  in  the  Army  "  does  not  mean  serv- 
ice in  the  Regular  Army,  inasmuch  as  the  act  of  April  22,  1898  (30 
Stat.,  361),  defines  the  term  ''Army"  as  including  the  Volunteer 
Army. 

(64-213,  64-310,  J.  A.  G.,  Mar.  3,  1917.) 


ENLISTED  RESERVE  CORPS:   Pay  of  civil  employee. 

On  the  question  whether  a  civil  employee  of  the  War  Department 
who  enlists  in  the  Engineer  Enlisted  Reserve  Corps  can  be  given 
leave  of  absence  with  pay  in  his  civil -status  while  he  is  receiving 
training  as  a  member  of  said  corps  and  at  the  same  time  receive  pay 
in  his  military  status, 

Held,  that  there  can  be  no  legal  objection  to  his  receiving  the  com- 
pensation of  both  places  if  the  training  is  performed  within  his  an- 
nual leave  allowance,  provided  the  combined  compensation  of  both 
places  does  not  exceed  the  sum  of  $2,000,  so  as  to  come  within  the 
prohibition  of  section  6  of  the  act  of  May  10,  1916,  as  amended  (39 
Stat.,  582)  ;  that  as  the  two  positions  are  entirely  distinct,  each  with 
its  own  compensation  and  duties,  the  case  does  not  come  within  the 
prohibition  of  sections  1763,  1764,  and  1765,  Revised  Statutes;  and 
that  the  military  position  is  not  an  office  within  the  meaning  of  the 
act  of  July  31,  1894  (28  Stat.,  205),  so  as  to  preclude  a  civil  employee, 
if  his  salary  should  be  $2,500  or  more,  from  being  a  member  of  the 
Enlisted  Reserve  Corps. 

(6-302,  J.  A.  G.,  Mar.  8,  1917.) 


LIGHTHGTJSE  SERVICE:    Status  of  employees  upon  being  transferred  to 
the  "War  Department  in  time  of  national  emergency. 

In  case  of  a  transfer  of  the  Lighthouse  Service  to  the  War  Depart- 
ment in  time  of  national  emergency,  as  provided  by  the  act  of  August 
29,  1916  (39  Stat.,  602), 


676       DIGEST  OF  OPINIONS  OF   THE  JUDGE  ADVOCATE   GENERAL. 

Ildd^  that  such  employees  will  retain  their  civilian  status  and  that 
the  employees'  compensation  act  of  September  17,  1916  (39  Stat., 
742),  will  be  applicable  to  them  in  case  of  their  injury  or  death  in 
line  of  duty ;  and  further,  that  in  case  of  their  capture  by  the  enemy, 
the  principles  of  international  law  relating  to  prisoners  of  war  no 
doubt  will  applv. 

(16-310,  J.  A.  G..  Mar.  9,  1917.) 


NATIONAii  GUASD:   Payment  of,  for  State  duty  under  call  of  Governor. 

Ileld^  the  President  alone  has  authority  to  call  forth  the  National 
Guard  of  the  several  States  to  protect  railroads  and  factories  as  in- 
strumentalities of  the  Federal  Government.  When  the  States  them- 
selves call  forth  such  forces  to  guard  such  plants,  they  are  exercising 
their  own  police  power  in  the  duty  of  protection  which  they  owe  to  all 
property  within  their  borders.  While  Congress  may  reimburse  the 
States  for  the  resulting  benefit  to  the  United  States,  the  National 
Guard  so  called  forth  is  not  placed  in  the  service  of  the  United  States, 
and  neither  the  War  Department  nor  any  official  thereof  has  au- 
thority to  call  for  such  service  or  funds  to  reward  it  when  rendered. 

(58-100,  J.  A.  G.,  Mar.  12,  1917.) 


NATIONAL  GrUAE,D:    Power  of  President  to  call  forth  the  National  Guard 
to  guard  ammunition  plants  and  railroads. 

Held,  when  interference  with  the  channels  of  postal,  commercial, 
and  military  communication,  or  with  other  instrumentalities  of  the 
Federal  Government,  is  apprehended,  the  President  has  power  to 
call  forth  the  militia  to  forestall  such  interference.  This  power  is  a 
concomitant  of  his  constitutional  duty  to  see  that  the  laws  are  faith- 
fully executed.  The  method  for  its  exercise  is  prescribed  in  section  3, 
act  of  May  27,  1908  (34  Stat.,  402),  which  authorizes  the  President 
to  call  forth  such  number  of  the  militia  as  he  may  deem  necessary 
to  execute  the  laws,  subject  only  to  the  condition  that  the  available 
regular  forces  be  employed  for  this  purpose  before  recourse  is  had  to 
the  militia. 

(58-100,  J.  A.  G.,  Mar.  12,  1917.) 


NATIONAL  GUABD:   Travel  expenses  in  responding  to  President's  call. 

An  enlisted  man  of  the  National  Guard  applied  for  reimburse- 
ment of  his  travel  expenses  incurred  in  reporting  at  his  company 
rendezvous  for  Federal  service  under  the  President's  call  of  June 
18,  1916. 

Held,  that  there  is  no  statutory  aiithoiity  for  the  reimbursement  of 
such  expenses. 

(58-700,  J.  A.  G.,  Mar.  17.  1917.) 


OFFICEES :   Transfer  of,  from  line  to  Engineer  Corps. 

On  the  question  whether  or  not  an  officer  of  the  line  of  the  Army 
may  be  transferred  to  the  Corps  of  Engineers  under  section  25  of  the 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       G77 

national  defense  act  of  June  3,  1916,  authorizin<^  the  transfer  between 
branches  of  the  line  of  the  Army  for  the  purpose  of  lessening  in- 
equalities of  promotion  clue  to  increases  under  said  act, 

Held,  that  such  transfer  is  not  authorized.  AMiile  engineer  officers 
ser\'ing  with  engineer  troops  are  a  part  of  the  line  of  the  Arm}', 
section  22  of  the  act  of  February  2,  1901,  prescribing  that  "  the  en- 
listed force  of  the  Corps  of  Engineers  and  the  officers  serving  there- 
with shall  constitute  a  part  of  the  line  of  the  Army,"  they  hold  their 
offices  in  the  Corps  of  Engineers  and  are  merely  detailed  on  duty 
with  troops ;  that  such  vacancies  as  may  be  said  to  occur  in  the  com- 
missioned personnel  of  troop  organizations  are  not  filled  by  appoint- 
ment to  office  but  by  the  detail  of  a  person  holding  office  in  the  Corps 
of  Engineers;  and  that  the  transfer  of  a  line  officer  to  the  Corps  of 
Engineers  would  not  fill  a  vacant  office  in  the  line,  but  would  fill  a 
vacant  office  in  a  staff  corps. 

(6-226,  J.  A.  G.,  Mar.  24,  1917.) 


OFFICEBS:    Transfer  of;  personal  examination. 

On  the  question  whether  section  25  of  the  national  defense  act  of 
June  3,  1916,  in  prescribing  a  "■'  personal  examination  "  by  the  ex- 
amining board  "of  such  officer  and  of  his  official  record,"  re(|uires 
the  bodily  presence  of  the  officer  before  the  board,  it  being  pointed 
out  that  such  interpretation  would  involve  in  many  cases  extensive 
journeys  at  ^•ery  great  expense, 

Held^  that  the  word  "personal"  may  be  used  either  subjectively 
or  objectively;  that,  with  reference  to  the  official  record,  the  word 
is  evidently  used  subjectively  and  relates  to  the  board,  and  that  if  the 
word  is  so  construed  with  reference  to  the  officer  it  Avould  not  require 
the  bodily  presence  of  the  candidate.  As  the  meaning  of  the  term  is 
doubtful,  in  deference  to  the  rule  that  where  the  language  is  doubtful 
a  construction  which  gives  it  reasonable  effect  is  preferred  to  one 
which  results  in  very  great  inconvenience  {United  States  v.  Fisher, 
2  Cranch,  286),  the  statute  in  this  case  should  be  construed  so  as  not 
to  require  a  candidate  to  appear  in  person  before  the  board  which 
makes  recommendations  as  to  his  transfer. 

(64-221.4,  J.  A.  (x.,  Mar.  12,  1917.) 


OFFICERS,  DENTAL  CORPS :    Retirement  of,  upon  failure  to  pass  physical 
examination  for  promotion. 

The  question  was  presented  as  to  the  proper  disposition  of  a  first 
lieutenant,  Dental  Corps,  who  appeared  before  an  examining  board 
to  determine  his  fitness  for  promotion  under  the  provisions  of  sec- 
tion 10  of  the  national-defense  act  and  was  found  by  the  board  to 
be  disqualified  both  physically  and  mentally. 

Held,  that  under  the  provision  of  said  section  which  niakes  appli- 
cable to  him  "  all  laws  relating  to  the  examination  of  officers  of  the 
Medical  Corps  for  promotion,"  he  is,  by  reason  of  having  failed  to 
pass  his  physical  examination  for  promotion,  entitled  to  be  retired 
with  the  rank  of  captain. 

(6-227.3,  J.  A.  G.,  Mar.  20,  1917.) 


678     DIGEST  OF  opiisrioisrs  op  the  judge  advocate  general. 

PORTO  RICO  REGIMENT:   Detached  service  of  officers. 

Upon  reference  to  the  Judge  Advocate  General  for  opinion  as  to 
the  eligibility  of  a  first  lieutenant  of  the  Porto  Rico  Regiment  of  In- 
fantry for  detail  as  a  student  oiScer  in  the  Ordnance  Department 
under  section  21  of  the  national-defense  act  of  June  3,  1916,  pro- 
viding that  captains  and  lieutenants  of  said  regiment  "  shall  also  be 
eligible  for  such  detached  service,  transfer,  or  promotion  to  duty 
with  other  organizations  as  may  be  approved  by  the  Secretary  of 
War ;  but  vacancies  created  by  such  appointments  of  officers  shall  not 
be  filled  by  promotions  or  appointments." 

Held^  that  as  section  12  of  the  same  act  clearly  contemplates  that 
lieutenants  detailed  as  student  officers  in  the  establishments  of  the 
Ordnance  Department  shall  be  eligible,  if  they  satisfactorily  com- 
plete the  course  of  instruction,  for  detail  to  fill  vacancies  in  the 
Ordnance  Department  for  the  period  of  four  years  and  for  redetail 
for  like  periods  during  their  commissioned  service,  and  provides  also 
that  vacancies  resulting  from  details  to  vacancies  in  the  Ordnance 
Department  shall  be  filled  by  promotion  or  appointment,  while,  as 
to  details  for  detached  service  of  captains  and  lieutenants  of  the 
Porto  Rico  Regiment  it  is  expressly  provided  that  they  shall  not  be 
filled  by  promotion  or  appointment,  it  must  be  held  that  such  officers 
of  said  regiment  are  not  eligible  for  detail  to  vacancies  in  the  Ord- 
nance Department  or  for  detail  as  student  officers  in  the  ordnance 
establishments  for  the  reason  that  such  details  contemplate  eligibility 
for  subsequent  details  in  the  ordnance  establishment. 

Held  further^  that  the  provisions  of  section  21  would  be  given 
reasonable  effect  by  limiting  their  operation  to  details  for  detached 
service  other  than  the  filling  of  vacancies  in  respect  to  which  the  law 
provides  that  details  thereto  shall  create  vacancies  to  be  filled  by  pro- 
motion or  appointment, 

(6-260,  J.  A.  G.,  Mar.  10,  1917.) 


PURCHASE  OF  SUPPLIES:    Exchange  of  typewriters  and  subscriptions 
to  periodicals. 

The  general  statutory  provisions  authorizing  the  exchange  of 
typewriters,  adding  machines,  and  other  similar  labor-saving  de- 
vices (sec.  5  of  the  general  deficiency  appropriation  act,  approved 
Mar.  4,  1915,  38  Stat.,  1161)  and  the  advance  payment  of  subscrip- 
tions to  periodicals  (sec  5,  legislative,  executive,  and  judicial  appro- 
priation act,  approved  Mar.  4,  1915,  38  Stat.,  1049),  held  applicable 
to  all  branches  of  the  public  service  for  which  appropriations  are 
made  by  Congress,  no  specific  statutory  authority  for  the  purpose 
in  connection  with  the  aj^propriations  being  deemed  necessary. 

(56-120,  J.  A.  G.,  Mar.  23,  1917.) 


DECISIONS  OF  THE  COMPTROLLER  OF  THE  TREASURY. 

(Dicrests  pvepared  in  the  office  of  the  Judge  Advocate  General.) 
CIVILIAN  EMPLOYEES:  Holiday  pay. 

Where  a  tentmaker  was  given  a  "temporary"  appointment  pend- 
ing the  procurement  of  an  eligible  list  by  the  Civil  Service  Commis- 


DIGEST  OF   OPINIONS  OF   THE  JUDGE  ADVOCATE   GENERAL.       679 

sion,  his  employment,  however,  being  continuous  and  for  an  in- 
definite period. 

Held^  that  he  was  entitled  to  the  same  right  to  pay  for  holidays  as 
if  his  employment  had  been  permanent,  the  words  "  temporary  "  and 
"  permanent "  in  such  cases  having  relation  to  the  civil  service 
status  and  not  necessarily  to  the  continuity  or  permanence  of  the 
emplovment. 

(Comp.  Treas.,  Mar.  10,  1917.) 


CLAIMS:  Rental  for  lands  purchased,  between  date  of  execution  of  deed  and 
of  final  payment. 

Where  the  United  States  is  in  possession  of  land  under  an  annual 
lease,  and  during  the  life  of  the  lease  the  land  i^  purchased  and 
deed  executed  but  payment  is  not  made  until  several  months  there- 
after owing  to  delay  in  the  approval  of  the  title  papers  by  the  At- 
torney General, 

HeM,  that  the  delivery  of  the  deed  of  conveyance  changed  the  re- 
lation of  the  parties  from  landlord  and  tenant  to  that  of  vendor  and 
vendee;  that  upon  final  acceptance  by  the  United  States  the  title 
related  back  to  the  date  of  the  delivery  of  the  deed,  and  that  there- 
fore payment  of  a  claim  for  rental  was  not  authorized,  since  the 
United  States  could  not  be  expected  to  pay  rent  on  property  of 
which  it  held  the  title. 

(Comp.  Treas.,  Mar.  12,  1917.) 


CONTRACTS:  Purchase  of  supplies  for  Army  in  absence  of  appropriations. 

In  case  of  the  purchase  of  supplies,  etc.,  for  the  Army,  under  sec- 
tion 3732,  Revised  Statutes,  as  amended  (34  Stat.,  255),  in  the  absence 
of  appropriations, 

Held^  that  there  is  no  objection  to  the  delivery  of  vouchers  therefor 
to  the  contractors  bearing  a  dated  and  signed  statement  to  the  fol- 
lowing effect : 

"  This  account  is  not  payable  at  this  time  by  reason  of  the  fact 
that  no  funds  are  now  available,  owing  to  the  failure  of  Congress  to 
pass  the  general  deficiency  bill.  Payment  will  be  made  to  the  con- 
tractor named  on  the  voucher  when  funds  become  available.  This 
is  the  original  voucher,  and  no  other  voucher  will  be  issued  covering 
this  transaction  except  on  conclusive  proof  of  the  loss  of  the  original." 

Further  suggested,  as  the  better  plan,  that  any  claim  or  so-called 
voucher  should  be  sent  to  the  Auditor  for  the  War  Department  for 
settlement,  in  which  case  the  auditor  "  can  certify  the  amount  due  and 
transmit  his  certificate  to  the  Secretary  of  the  Treasury  immediately. 
The  claimant  can  then  be  furnished  a  certified  copy  of  the  auditor's 
certificate,  which  will  be  evidence  that  he  has  a  certain,  licjuidated, 
and  conclusive  balance  due  from  the  United  States,  payable  imme- 
diately upon  the  making  of  an  appropriation  by  law.  The  fact  as 
to  future  appropriations  will  appear  in  the  certificate." 

(Comp.  Dec,  Mar.  22,  1917.) 


DEATH  GRATUITY  STATUTE:  Not  applicable  to  Army  Nurse  Corps. 

The  act  of  May  11,  1908,  as  amended  (35  Stat.,  108;  /f  735),  relat- 
ing to  the  payment  of  death  gratuities  under  the  conditions  therein 


680       DIGEST  OF  OPINIONS   OF   THE  JUDOE  ADVOCATE   GENERAL. 

prescribed  is  limited  to  "  any  officer  or  enlisted  man  on  the  active  list 
of  the  Army." 

Held^  that  this  statute  does  not  apply  to  members  of  the  Army 
Knrse  Corps;  that  while  the  words  "officers  and  enlisted  men"  may 
be  used  in  an  act  of  Congress  with  a  broader  meaning  than  the  words 
usually  imply,  the  context  of  the  act  here  in  question,  as  well  as  the . 
policy  back  of  the  law,  indicate  that  a  meaning  broader  than  that 
usually  attached  to  those  words  was  not  intended,  this  conclusion 
being  justified  by  the  fact  that  the  act  specifically  provides  that  pay- 
ment of  the  amount  therein  authorized  shall  be  made  to  the  widow 
or  any  other  persons  previously  designated  by  Aim,  and  the  further 
fact  that  as  the  Army  Nurse  Corps  was  in  existence  at  the  time  when 
the  act  of  May  11,  1908,  was  passed,  if  Congress  had  intended  to 
include  within  its  operation  the  members  of  the  Army  Nurse  Corps, 
or  any  other  civilians,  it  would  doubtless  have  used  language  more 
indicatiA^e  of  that  purpose, 

(Comp.  Treas.,  Mar.  24,  1917.) 


MEDICAL  TREATMENT :  Soldier  in  private  hospital  at  time  of  muster  out. 

T^pon  the  question  whether  in  the  case  of  certain  enlisted  men  of 
the  National  Guard  remaining  in  a  private  hospital  for  treatment 
after  the  muster  out  of  their  organization,  payment  for  the  hospital 
treatment  could  be  made  from  public  funds. 

Held.,  that  the  discharge  of  an  enlisted  man  of  the  Organized 
Militia  or  National  Guarcl  in  the  actual  service  of  the  United  States 
who  is  a  patient  in  a  hospital  at  the  time  of  the  actual  discharge  (on 
or  after  formal  muster  out)  from  the  service  of  the  United  States 
of  the  organization  of  which  he  was  a  member  takes  effect  on  the  day 
he  is  chargeable  with  receipt  of  notice  of  such  muster  out,  unless  it  be 
clearly  shown  that  he  has  been  held  by  competent  authority  to  further 
military  service;  that  the  law  authorizes  payment  for  the  medical 
care  and  treatment  and  the  subsistence  "  of  officers,  enlisted  men,  and 
civilian  employees  of  the  Army  "  in  private  hospitals,  whenever  such 
care  and  treatment  can  not  be  given  in  ti  military  hospital,  and  that 
if  any  such  officers,  enlisted  men,  and  civilian  employees  are  retained 
and  cared  for  as  patients  in  private  hospitals  after  their  discharge 
from  the  military  service  of  the  United  States  takes  effect,  the  claim 
in  each  case  should  be  settled  upon  the  facts  adduced ;  such  claim  to 
be  sent  to  the  Auditor  for  the  War  Department  for  examination  and 
settlement. 

(Comp.  Treas.,  Feb.  3.  1917.) 


DECISIONS  OF  THE  COURTS. 

(Digests  prepared  in  the  office  of  the  Judge  Advocate  General.) 

CLAIMS:  Loss  of  private  property  in  the  military  service. 

Where  a  claim  for  the  loss  by  a  soldier  of  private  property  in 
the  military  service  was  not  presented  to  the  accounting  officers  of 
the  Treasurv  within  two  years,  as  prescribed  by  the  act  of  March  3, 
1885  (23  Stat.,  350).  ancT  suit  was  thereafter  brought  in  the  Court 
of  Claims  to  recover  the  value  of  the  property, 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       681 

Held^  that  no  claim  having  been  made  within  the  time  fixed  by 
the  statute,  the  court  was  without  jurisdiction. 

{Thomas  C.  Goodmun  v.  The  United  States^  decided  by  Coui-t 
of  Claims,  Feb.  26,  1917.) 

EVIDENCE :   Corroboration  in  case  of  confession. 

On  the  trial  of  a  defendant  for  knowingly  receiving  in  pledge 
from  a  soldier  an  automatic  pistol,  the  property  of  the  United 
States,  in  violation  of  section  35  of  the  Federal  criminal  code, 

Ileld^  that  the  confession  of  the  defendant  that  he  received  the 
pistol  in  pledge  from  a  soldier  was  sufficiently  corroborated  to  justify 
the  submission  of  the  case  to  the  jury  by  evidence  showing  that  the 
pistol  was  issued  to  a  soldier,  and  that  it  was  found  in  the  possession 
of  defendant,  whose  place  of  business  was  very  near  the  reservation 
on  which  such  soldier  was  stationed;  and  further,  that  evidence  that 
the  pistol  was  found  in  defendant's  possession  was  sufficient  to  sus- 
tain a  verdict  of  guilty  under  Revised  Statutes  1242  and  8748. 

Held  further^  that  evidence  offered  by  defendant  to  show^  that 
the  pistol  had  been  charged  to  the  soldier  was  properly  excluded 
where  the  evidence  did  not  show  that  he  was  the  owner  at  the  time  it 
was  pledged,  but  that  the  charge  was  made  after  its  loss  was  Imown. 

{BoUand  v.  United  States,  288  Fed.,  529.) 


PUBLIC  PROPERTY:  Appropriation  of,  to  private  use. 

An  applicant  for  enlistment,  who  falsely  represented  that  he  had 
had  no  previous  service  in  the  Arm.y  and  was  furnished  subsistence 
and  transportation  to  the  recruit  depot  where  it  was  ascertained  that 
he  had  been  dishonorably  discharged  from  the  Army  and  was  not 
eligible  for  reenlistment.  was  indicted  for  applying  to  his  own  use 
subsistence  and  supplies  furnished  to  be  used  for  military  service,  in 
violation  of  section  86  of  the  Federal  Criminal  Code,  which  declares : 

"  Whoever  sliall  steal,  embezzle,  or  knowingly  apply  to  his  own 
use,  or  unlawfully  sell,  convey,  or  dispose  of  any  ordnance,  arms, 
ammunition,  clothing,  subsistence,  stores,  money,  or  other  property 
of  the  United  States,  furnished  or  to  be  used  for  the  military  or  naval 
service,  shall  be  punished,"  etc.     Upon  a  demurrer, 

Ileld,  by  the  court,  that  the  charge  against  defendant  did  not 
constitute  a  violation  of  the  statute ;  that  the  section  does  not  apply 
to  one  who  has  used  the  property  for  the  very  purpose  for  which  it 
was  given ;  that  is  to  say,  one  who  has  used  for  the  purpose  of  sub- 
sistence the  property  given  him  for  subsistence  and  has  used  for 
transportation  to  a  designated  place  the  property  given  him  to  be 
used  for  transportation  to  that  place. 

{U.  S.  V.  Buchanan,  288  Fed.,  877.) 


NOTES  ON  ADMINISTRATION  OF  MILITARY  JUSTICE. 

(Prepared  iinder  the  direction  of  the  Jiidgre  Advocate  General   of  the  Army 
upon  the  review  of  records  of  general  courts-martial  trials.) 

SENTENCES:  Retention  of  soldiers,  guilty  of  offenses  involving  moral  tur- 
pitude, not  favored. 

(1)   A  soldier,  who  was  convicted  of  forgery  and  uttering  forged 
instruments  on  four  counts,  was  sentenced  to  tw^o  months'  imprison- 


682       DIGEST  OF  OPINIONS  OF   THE   JUDGE  ADVOCATE   GENERAL. 

ment.  The  case  was  returned  to  the  court  for  reconsideration  of  its 
sentence.  The  court  adhered  to  its  former  sentence.  It  was  again 
returned,  with  the  result  that  the  court  then  imposed  a  sentence  of 
two  months'  confinement  and  the  forfeiture  of  two-thirds  of  his  pay 
per  month  for  a  like  period,  which  the  provisional  division  com- 
mander in  his  review  characterized  as  a  travesty  on  justice. 

(2)  A  soldier,  who  was  convicted  of  larceny  of  Government  prop- 
erty, was  sentenced  to  three  months'  imprisonment,  which  the  pro- 
visional division  commander  approved  even  vvithout  comment. 

(3)  A  soldier,  convicted  of  fraudulent  enlistment  for  concealing 
from  the  recruiting  officer  the  fact  of  his  dishonorable  discharge 
from  a  former  enlistment  on  account  of  embezzlement,  was  sentenced 
to  dishonorable  discharge  and  one  year's  confinement,  which  was  re- 
duced to  confinement  for  four  months  and  forfeiture  of  one-half  of 
his  pay  per  month  for  a  like  period. 

These  cases  indicate  to  the  service  as  a  whole  and  to  the  public  that 
courts  of  officers  and  reviewing  authorities  are  of  the  opinion  that 
enlisted  men  convicted  even  of  felonies  may  be  retained  in  the  service. 
Under  the  law,  a  man  so  convicted  can  not  be  enlisted.  The  War  De- 
partment has  deemed  it  of  such  importance  to  keep  out  of  the  service 
men  convicted  of  even  less  serious  offenses  that  have  called  for  im- 
prisonment in  a  reformatory,  jail,  etc.,  that  regulations  have  been 
issued  prohibiting  such  enlistments.  If  a  man  is  found  guilty  of  an 
offense  of  this  sort,  he  must  be  regarded  as  having  placed  himself 
in  a  situation  where  mitigating  circumstances  will  not  serve  to  hold 
him  in  the  service,  though  they  may  be  considered  for  the  purpose  of 
reducing  or  wholly  remitting  any  other  part  of  the  sentence  imposed 
upon  him.  A  standard  lower  than  this  would  be  extremely  harmful 
to  the  service.  Any  community  in  which  a  regiment  is  stationed, 
knowing  that  a  single  convicted  thief  is  amongst  its  personnel,  are 
disposed  to  judge  its  standard  by  the  individual.  No  sympathy  for 
an  accused  should  therefore,  in  any  case,  be  allowed  to  weigh  to  the 
extent  of  retaining  in  the  service  soldiers  convicted  of  offenses  in- 
volving moral  turpitude.  Clemency  can  not  restore  to  them  the 
respect  of  their  associates  or  the  public,  nor  eliminate  the  scandal 
and  suspicion  that  attach  to  the  service  by  the  retention  of  such  men 
in  the  Army. 

The  above-recited  principles  apply  as  well  to  the  National  Guard 
in  the  service  of  the  United  States  as  to  the  Regular  Army. 


HEARSAY    EVIDENCE:    Not    admissible    because    made    by    an    officer    in 
course  of  an  official  investigation. 

In  the  case  under  consideration — and  in  others  the  same  miscon- 
ception crops  out — the  Judge  Advocate  contended  that  the  officer 
who  preferred  the  charges,  when  sworn  as  a  witness,  could  testify 
to  all  facts  that  he  had  gained  from  the  investigation,  whether  hear- 
say or  not.  This,  of  course,  was  error.  (See  Manual  for  Courts- 
Martial,  par.  221.) 

OBJECTION  TO  MEMBER  OF  COURT:  Can  be  made  at  any  time  in  pro- 
ceedings. 

After  all  the  evidence  had  been  taken  in  this  case,  counsel  for  the 
accused  stated: 


DIGEST  OF  OPINIONS  OF  THE  JUDGE  ADVOCATE  GENERAL.       683 

"  I  should  like  to  call  the  court's  attention  to  the  fact  the  testi- 
mony has  brought  out  the  fact  that  one  of  the  members  of  the  court  is 
vitally  interested  in  this  case;  he  has  conducted  the  search  and  is 
absolutely  familiar  with  the  details  and  has  probabh^  foi-med  his 
own  opinions  in  the  matter.  I  appeal  to  the  members' of  this  court 
W'ho  are  lawj^ers  that  the  member  of  the  court  is  incompetent  in  that 
he  is  biased  in  the  case.  Y\x  did  not  know  that  at  the  time  of  the 
introduction  of  the  facts,  otherwise  would  have  objected  at  the  start. 
We  do  not  think  the  gentleman  is  fit  to  sit  on  the  case,  but  it  has 
developed  since  the  case  opened  that  a  member  of  the  court  is  incom- 
petent." 

The  president  ruled  that  it  was  too  late  to  object  to  the  member 
sitting  on  the  court,  slating  that  the  counsel  for  the  accused  had  the 
right  to  attack  the  legality  of  the  court  at  the  opening  of  the  case 
Counsel  insisted  on  his  right  to  object  at  that  time,  and  was  over- 
ruled by  the  court. 

The  ruling  of  the  court  was  error,  as  the  accused  would  have  had 
the  right  to  enter  an  objection  to  any  member  of  the  court  up  to  the 
last  minute  upon  the  statement,  and  proof  if  required,  that  tlie  facts 
upon  which  the  objection  was  based  were  not  within  his  knowledge 
at  the  time  when  such  objection  is  ordinarily  made.  Of  course,  ob- 
jection should  be  made  on  these  grounds  as  soon  as  the  knowledge 
upon  which  it  is  based  has  come  into  the  possession  of  the  accused. 


FEDERAL  AND  STATE  LAWS  PROHIBITING  DISCRIMINATION 

AGAINST  THE  UNIFORM. 

1.    UNITED  STATES. 

Hereafter  no  proprietor,  manager,  or  employee  of  a  theater  or 
other  public  place  of  entertainment  or  amusement  in  the  District  of 
Columbia,  or  in  any  Territory,  the  District  of  Alaska,  or  insular 
possession  of  the  United  States,  shall  make,  or  cause  to  be  made,  any 
discrimination  against  any  person  lawfully  wearing  the  uniform  cf 
the  Army,  Navy,  Revenue-Cutter  Service,  or  Marine  Corps  of  the 
United  States  because  of  that  uniform,  and  any  person  making,  or 
causing  to  be  made,  such  discrimination  shall  be  guilty  of  a  misde- 
meanor, punishable  by  a  fine  not  exceeding  five  hundred  dollars. 
(Act  of  Mar.  1,  1911,  36  Stat.,  963.) 


2.    CONNECTICUT. 

Every  person  who  shall  subject  or  cause  to  be  subjected  any  other 
person  to  the  deprivation  of  any  rights,  privileges,  or  immunities 
usually  enjoyed  by  the  public,  on  account  of  membership  in  the 
military  or  naval  service  of  this  State  or  of  the  United  States,  or  on 
account  of  the  wearing  of  the  uniform  of  such  service,  or  who,  on 
account  of  such  membership  or  the  wearing  of  such  uniform,  shall 
deprive  any  other  person  of  the  full  and  ecjual  enjoyment  of  an}- 
advantages,  facilities,  accommodations,  amusement,  or  trans]:)orta- 
tion,  subject  only  to  the  limitations  established  by  law  and  applicable 
alike  to  all  persons,  or  who,  on  account  of  such  membershii)  or  the 
wearing  of  such  uniform,  shall  discriminate  in  the  price  for  the 


684       DIGEST  OF  OPINIONS  OF   THE   JUDGE  ADVOCATE   GENEEAL. 

enjoj-ment  of  any  such  privileges,  shall  forfeit  and  pay  to  the  person 
injured  thereby  double  damages,  to  be  recovered  in  any  court  of 
competent  jurisdiction  within  this  State.     (Public  acts,  1909,  ch.  192.) 


3.    ELOIIIDA. 

No  person  shall  prohibit  or  refuse  entrance  to  any  officer  or  en- 
listed man  of  the  Army  or  Navy  of  tlie  United  States  or  of  the 
National  Guard  of  this  State  into  any  public  entertainment  or  place 
of  amusement  because  such  officer  or  enlisted  man  is  wearing  the 
uniform  of  the  organization  to  which  he  belongs.     *     *     * 

Any  person  violating  the  provisions  of  the  foregoing  paragraphs 
of  this  section  shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon 
conviction  before  a  court  of  competent  jurisdiction,  may  be  fined  not 
exceeding  two  hundred  dollars,  or  sentenced  to  a  confinement  for  not 
exceeding  six  months,  or  both,  at  the  discretion  of  the  court.  (Com- 
piled laws,  1914,  sec.  731.) 


4.  KENTUCKY. 

Nor  shall  the  owner,  proprietor,  manager,  or  employee  of  any 
hotel,  opera  house,  skating  rink,  or  any  other  place  of  public  amuse- 
ment or  entertainment  deny  admission  to,  or  in  any  way,  discriminate 
against,  any  member  of  the  Organized  Militia  of  the  United  States, 
or  of  the  United  States  Army,  Navy,  or  Marine  Corps,  on  account 
of  his  being  in  the  uniform  of  his  rank  and  service.  *  *  *  Any 
person  violating  any  provision  of  this  section  shall,  upon  conviction, 
be  punished  bv  a  fine  not  exceeding  three  hundred  dollars.  (Stat- 
utes, 1915,  sec.'2G60.) 

5.  MABYLAND. 

it  shall  be  unlawful  for  the  owner,  or  the  owner's  agent,  whatever 
may  be  the  latter's  designation,  of  any  place  of  amusement  or  of 
recreation  otherwise  opened  to  the  general  public,  admission  to  which 
is  free  or  otherwise,  to  refuse  admission  to  or  exclude  from  the  said 
place  of  amusement  or  of  recreation,  any  officer  or  enlisted  man  of 
the  United  States  Army,  Navy,  Marine  Corps,  Revenue-Cutter  Serv- 
ice, the  National  Guard  of  this  State  or  of  any  State,  Territory,  and 
of  the  District  of  Columbia,  by  reason  of  such  officer  or  enlisted 
man  being  in  uniform,  and  any  such  owner,  or  agent  aforesaid,  who 
upon  conviction  before  a  court  of  criminal  jurisdiction  shall  be 
found  guilty  of  a  violation  of  the  provisions  of  this  section  shall  be 
deemed,  and  he  is  hereby,  declared  to  be  guiltv  of  a  misdemeanor 
and  shall  be  fined  a  sum  not  exceeding  five  hundred  dollars  or  im- 
prisoned for  not  more  than  six  months,  or  both,  in  the  discretion  of 
the  court.     (Annotated  Code  of  Maryland,  vol.  3,  art.  65,  sec.  83.) 


6.    MASSACHUSETTS. 

No  proprietor,  manager,  or  employee  of  a  theater  or  other  public 
place  of  entertainment  or  amusement  shall  make,  or  cause  to  be  made, 
any  discrimination  against  any  person  lawfully  wearing  the  uniform 
of  the  Army,  Navy,  Revenue-Cutter  Service,  or  Marine  Corps  of  the 


DIGEST  OF   OPINIONS  OF   THE  JUDGE  ADVOCATE   GENERAL.       685 

United  States  because  cf  that  uniform,  and  any  person  making,  or 
causing  to  be  made,  such  discrimination  shall  be  guilty  of  a  misde- 
meanor, punishable  by  a  fine  not  exceeding  five  hundred  dollars. 
(xVcts  and  resolves,  1911,  ch.  460.) 


7.    MINNESOTA. 

It  shall  be  unlawful  for  any  common  carrier,  innkeeper,  or  pro- 
prietor or  lessee  of  any  place  of  public  amusement  or  entertainment, 
or  any  agent,  servant,  or  representative  of  any  such  common  carrier, 
innkeeper,  proprietor  or  lessee  as  aforesaid,  to  debar  from  the  full 
and  equal  enjoyment  of  the  accommodations,  advantages,  facilities, 
or  privileges  of  any  public  conveyance  on  land  or  water  or  any  inn 
or  of  any  place  of  public  amusement  or  entertainment,  any  person  in 
service  in  the  Army,  Navy,  Marine  Corps,  or  Revenue-Cutter  Service 
of  the  United  States,  or  of  the  National  Guard  or  naval  service  of 
this  State,  or  otherwise  in  the  militarv  or  naval  service  of  the  Ignited 
States,  or  of  this  State,  wearing  the  uniform  prescribed  for  him  at 
that  time  or  place  by  law,  regulation  of  the  service,  or  custom,  on 
account  of  his  wearing  such  uniform,  or  of  his  being  in  such  service. 

Any  person  who  is  debarred  from  such  enjoyment  contrary  to  the 
provisions  of  section  3998  of  this  act  shall  be  entitled  to  recover  in 
an  action  on  the  case  from  any  corporation,  association,  or  person 
guilty  of  such  violation,  his  actual  damages  and  $100  in  addition 
thereto;  and  evidence  that  such  person  debarred  was  at  the  time 
sober,  orderW,  and  willing  to  pay  for  such  enjoyment  in  accordance 
with  rates  fixed  therefor  for  civilians,  shall  be  prima  facie  evidence 
that  he  was  debarred  on  account  of  his  wearing  such  uniform  or  of 
his  being  in  such  service. 

Any  person  violating  any  provision  of  this  act  shall  be  guilty  of  a 
misdemeanor.      (General  Statutes.  1913,  sees.  3998,  3999,  4000."') 


8.    NEW  HAMPSHIRE. 

Hereafter  no  proprietor,  manager,  or  employee  of  a  theater  or 
other  public  place  of  entertainment  or  amusement  in  the  State  of 
New  Hampshire  shall  make  or  cause  to  be  made  any  discrimination 
against  any  person  lawfully  wearing  a  uniform  of  the  Army,  Navy, 
Revenue-Cutter  Service,  or  Marine  Corps  of  the  United  States,  or  of 
the  militia  of  this  State,  because  of  that  uniform;  and  any  person 
making  or  causing  to  be  made  such  discrimination  shall  be  guilty 
of  a  misdemeanor  and  punishable  by  a  fine  not  exceeding  one  hun- 
dred dollars.     (Public  Statutes,  Laws,  1911,  ch.  140.) 


9.    NEW  YOEK. 

A  person  who  excludes  from  the  equal  enjoyment  of  any  accommo- 
dation, facility,  or  privilege  furnished  by  innkeepers  or  common  car- 
riers, or  by  owners,  managers,  or  lessees  of  theaiters  or  other  places 
of  amusement  or  resort,  any  person  lawfully  wearing  the  uniform  of 
the  Army,  Navy,  Marine  Corps,  or  Revenue-Cutter  Service  of  the 
United  States  because  of  that  uniform,  is  guilty  of  a  misdemeanor. 
(Laws,  134th  session,  1911,  vol.  1,  ch.  410.) 


686       DIGEST  OF  OPINIONS  OF   THE   JUDGE   ADVOCATE   GENERAL. 

10.    OKXAEOMA. 

Any  person,  persons,  firm,  or  corporation  who  shall  refuse  admit- 
tance to  or  eject  from  any  place  where  the  public  is  admitted,  such 
as  hotels,  cafes,  places  of  amusement,  etc.,  any  member  of  the  United 
States  Army,  Navy,  Marine  Corps,  Naval  or  Military  Academy,  or 
of  the  National  Guards  of  any  State,  Temtory,  or  the  District  of 
Columbia  on  account  of  his  uniform,  shall  be  guilty  of  a  misde- 
meanor, and  shall  be  punishable  by  a  fine  of  not  less  than  $50  nor 
more  than  $200,  or  imprisonment  in  the  county  jail  for  not  to  exceed 
thirty  days,  or  by  both  such  fine  and  imprisonment,  at  the  discretion 
of  the  court.     (Session  Laws,  1910-11,  ch.  153.) 


11.  PENNSYLVANIA. 

No  proprietor,  manager,  or  employee  of  a  theater,  or  other  place 
of  entertainment  or  amusement,  in  the  State  of  Pennsylvania,  shall 
make  or  cause  to  be  made  any  discrimination  against  any  person 
wearing  the  uniform  of  the  United  States  because  of  that  uniform; 
and  any  person  malting  or  causing  to  be  made  such  discrimination 
shall  be  deemed  guilty  of  a  misdemeanor,  punishable  by  a  fine  not 
exceeding  five  hundred  dollars,  or  by  imprisonment  not  exceeding 
one  year,  or  by  both.  (Public  Law  125,  May  5,  1911;  Purdon's 
Digest,  vol.  7,  p.  7718.) 

12.  RHODE  ISLAND. 

It  shall  be  unlawful  for  any  common  carrier,  innkeeper,  or  pro- 
prietor or  lessee  of  any  place  of  public  amusement  or  entertainment, 
or  any  agent,  servant,  or  representative  of  any  such  common  carrier, 
innkeeper,  proprietor,  or  lessee  as  aforesaid,  to  debar  from  the  full 
and  equal  enjoyment  of  the  accommodations,  advantages,  facilities, 
or  privileges  of  any  public  conveyance  on  land  or  water,  of  any  inn, 
or  of  any  place  of  public  amusement  or  entertainment  any  person  in 
the  military  or  naval  service  of  the  United  States  or  of  this  State 
wearing  the  uniform  prescribed  for  him  at  that  time  or  place  by  law, 
regulation  of  the  service,  or  custom,  on  account  of  his  wearing  such 
uniform  or  of  his  being  in  such  service.  (General  Laws,  1909,  ch. 
349,  sec.  46.) 

13.  VIRGINIA. 

Be  it  enacted  hy  the  General  Assembly  of  Virginia^  That  it  shall 
be  unlawful  for  any  common  carrier,  innkeeper,  or  proprietor  or 
lessee  of  any  place  of  public  amusement  or  entertainment,  or  any 
agent,  servant,  or  representative  of  any  such  common  carrier,  inn- 
keeper, proprietor,  or  lessee  as  aforesaid,  to  debar  from  the  full  and 
equal  enjoyment  of  the  accommodations,  advantages,  facilities,  or 
privileges  of  any  public  conveyance  on  land  or  water,  or  any  inn,  or 
any  place  of  public  amusement  or  entertainment,  any  person  in  the 
Army,  Navy,  Marine  Corps,  or  Revenue-Cutter  Service  of  the  United 
States,  or  of  the  National  Guard  or  naval  service  of  this  State,  or 
otherwise  in  the  military  or  naval  service  of  the  United  States,  or 
of  this  State,  wearing  the  uniform  prescril)ed  for  him  at  that  time  or 
place  by  law,  regidation  of  the  service,  or  custom,  on  account  of  his 
wearing  such  uniform  or  of  his  being  in  such  service. 


DIGEST   OF    OPINIONS   OF    THE    JUDGE   ADVOCATE   GENERAL.       687 

Any  person  who  is  (lel):in'ed  from  such  enjo3'ment  cc^ntriirv  to  the 
provisions  of  section  1  of  this  act  shall  be  entitled  to  recover  in  an 
action  on  the  case  from  any  corporation,  association,  or  person  guilty 
of  such  violation,  his  actual  damages  and  one  hundred  dollars  in  ad- 
dition thereto;  and  evidence  that  such  person  del)arred  was  at  the 
time  sober,  orderly  and  willing  to  pay  for  such  enjoyment  in  accord- 
ance with  rates  fixed  therefor  for  civilians,  shall  be  prima  facie  evi- 
dence that  he  w^as  debarred  on  account  of  his  wearing  such  uniform 
or  of  his  being  in  such  service.  But  nothing  in  this  act  sluill  be  con- 
strued to  conflict  with  existing  laws  representing  the  separation  and 
segregation  of  the  races  in  this  Commonwealth. 

Any  person  violating  any  provision  of  this  act  shall  be  guilty  of 
a  misdemeanor.     (Acts  of  assembly,  1916,  ch.  433.) 


Note. — Sec.  125  of  the  national  defense  act  (39  Stat.,  216)  makes 
it  unlawful  for  any  person,  not  an  officer  or  enlisted  man  of  the 
United  States  Army,  Navy,  or  Murine  Corps,  with  certain  enumer- 
ated exceptions,  "  to  wear  the  duly  prescribed  uniform  of  the  United 
States  Army,  Navy,  or  Marine  Corps,  or  any  distincti^'e  part  of  such 
uniform,  or  a  uniform  any  part  of  which  is  similar  to  a  distinctive 
part  of  the  duly  prescribed  uniform  of  the  United  States  Army, 
Navy,  or  Marine  Corps,"  making  the  offense  punishable  by  a  fine  not 
exceeding  $300  or  by  imprisonment  not  exceeding  six  months  or  by 
both  such  fine  and  imprisonment.  This  section  w^as  made  applicable 
to  the  Coast  Guard  by  the  act  of  August  29,  1916  (39  Stat.,  649). 
Similar  laws  designed  to  prohibit  the  wearing  of  the  uniform  by 
anyone  not  in  the  military  service  have  been  enacted  in  the  following 
States:  Alabama,  Arizona,  xlrkansas,  California,  Connecticut,  Flor- 
ida, Georgia,  Idaho,  Illinois,  Iowa,  Kentucky,  Maine,  Maryland, 
Michigan,  Mississippi,  Missouri,  Montana,  New  Hampshire.  New 
Mexico,  New  York,  North  Dakota,  Oklahoma,  Oregon,  Khode  Island, 
South  Carolina,  South  Dakota,  Tennessee,  Texas,  Utah,  Washing- 
ton, West  Virginia,  and  Wisconsin. 


INDEX. 


ABBREVIATIONS    DENOTING    ORIGIN    OF   OPINIONS    OR   DECISIONS   DIGESTED. 

At.  Gen Attorney  General. 

Comp Comptroller's  decisions. 

Ct.  Cls Court  of  Claims. 

D.  C.  App District  of  Columbia  Appeals. 

Fed.  Ct Federal  courts. 

J.  A.  G Judge  Advocate  General. 

St.  Ct State  courts 

Sup.  Ct.,  P.  I Supreme  Court.  Philippine  Islands. 

Tr.  Ct.,  P.  I Trial  Court,  Ptdlippiue  Islands. 


Bulletins. 

Year. 

No. 

Page. 

Able-Bodied  Male  Citizens — 

Eligibility  for  service  in  Organized  Militia,  pension  for 

nlivsical  disabilitv  (J    A    G  ^  ..          

1914 

50 

443 

Absence — 

of  Acting  dental  surgeons.     See  Dental  surgeons. 

• 

of  Clerks.     See  Clerks  and  employees. 

of    Employees    of    Military    Academy.     See    Military 

Academy. 

of  Enlisted  men.     See  Enlisted  men. 

of  Enlisted  men,  National  Guard.     See  Enlisted  men, 

National  Guard. 

of  Officers.     See  Officers,  Army. 

of  Officers  of  National  Guard.     See  Officers,  National 

Guard. 

ff+mrnntyp  of  "nfiv  (J     A     G^ 

1917 

15 

658 

Accountability — 

for  SuddIips  received   ('Fed    Ct  ^    

1914 

5 

342 

Accounting  Officers — 

Jurisdiction,  breach  of  contract,  unliquidated  damages 

(Ocivnii  )        

1914 

46 

433 

Accounts — 

See  also  Disbursing  officers. 

After  settlement,  may  be  reopened  to  correct  mistakes 

('JAG)                                    

1913 

8 

162 

Disposition  of  certified  check  received  as  guaranties 

(J  A   G  )            

1915 
1915 

30 
30 

508 

T^tf^^onpniTicr  of  cipftlprl  ^nnimi  ^                                   

511 

Shortage  in,  post  exchanges,  responsibility  (J.  A.  G.).  -- 

1915 

9 

474 

Acting  Dental  Surgeons.     See  Dental  surgeons. 

Active  Duty — ■ 

Assignment  of  retired  paymasters'  clerks  to  (J.  A.  G.) .  . 

1912 

20 

47 

Act  OP  GoD — • 

Failure  of  subject  matter  of  contract  due  to  (J.  A.  G.) .  -  ■ 

1915 

5 

466 

Impossibility  of  performance  of  contracts  due  to  (J.  A.  G.) 

1913 

29 

271 

Transportation  on  Government  bill  of  lading,  loss  by 

flood  CCt  Cls  )                                  

1912 

12 

26 

Adjutant  op  a  Brigade — 

Detached  service,  duty  as,  by  captain  or  field  officer 

not    detailed    in    Adjutant    General's    Department 

(J.  A.G.) 

1914 

33 

394 

93668°— 17- 


-44 


689 


690 


INDEX. 


Bulletins. 


Adjutant  General — 

National  Guard,  State,  Territory,  or  District,  status  of 

(J.  A.G.) 

Admiralty — 

Jurisdiction,  cable  damaged  by  vessel  (Fed.  Ct.) 

Advertising — • 

Accepting  next  higher  bid  (J.  A.  G.) 

Alteration  of  bids  (J.  A.  G.) -  -  •- 

Competition  useless,  supplemental  contract  with  origi- 
nal contractor  (J.  A.  G.) 

Contract  with  city  of  New  York  for  certain  work  with- 
out (J.  A.  G.) 

Increase  of  quantities  in  contract  under  (J.  A.  G.) 

Lease  of  public  property  after  (J.  A.  G.) 

Pm'chase  of  aeroplane,  lack  of  competition  (J.  A.  G.).  -  - 

Purchase  of  supplies  in  open  market  without  (Comp.) .  . 

Rates  for  newspapers  (J.  A.  G.) 

Requirements  as  to,  for  purchase  of  supplies  (Comp.).  . . 

Requii'ements,  purchase  of  supplies  (Comp.) 

Aeroplanes — 

Purchase  of,  without  advertising,  lack  of  competition 

(J.  A.G.) 

Aids — 

Militia,  to  commander  in  chief  and  brigadier  generals 

(J.  A.G.) 

Alaska  Railroads — 

Coustruction'of,  detail  of  Army  officer  (J.  A.  G.) 

Aliens — 

Employed  on  Government  contracts  (J.  A.  G.) 

Naturalization,  enlisted  men  furloughed  to  Army  Res- 
erve, sec.  2166,  R.  S.  (Fed.  Ct.) 

Allotment  of  Pay.     See  Pay  of  enlisted  men. 
Allowances — 

For  a  particular  allowance,  such  as  heat  and  light,  see 
the  specific  title. 

Field  clerks,  date  of  commencement  (Comp.) 

Issue  of  shelter  tents  to  officers  (J.  A.  G.) 

Officers  retired  with  advanced  grade  (J.  A.  G.) 

Ambulance  Companies — 

Disposition  of  proceeds  of  sales  of  manure  from  ( J .  A .  G . ) . 

Sergeants,  limited  warrant,  appointment  (J.  A.  G.) .... 
American  Citizens — ■ 

Preference  in  employment  of  laborers  on  public  works 

(J.  A.G.) 

American  Refugees — 

Use  of  Army  transports  in  rescuing,  in  Mexico  (J.  A.  G.) . 
Ammunition — 

Eight-hour  law,  application  to  contracts  for  furnishing 
(At.  Gen.) --... 

Purchases  of,  application  of  eight-hour  law  to  (At.  Gen.) 
Ammunition  Plants — 

Calling  forth  National  Guard  to  protect  (J.  A.  G.) 

Antietam  Battlefield — ■ 

Loss  of  property,  responsibility  of  superintendent  (J. 
A.G.) - 

Superintendent  of,  in  classified  service  (J.  A.  G.) 

Appointments — 

Army  nurses,  time  when  effective  (Comp.) 

Army  officers.    See  Officers  of  Army. 

Army  officer,  commission  issued  in  name  of  deceased 
person  (At.  Gen.) 

Recess,  effect  of  Senate's  failure  to  confirm  (At.  Gen.) . 


Year. 


1916 


1917 


1914 


No. 


1917 


1913 
1913 

1914 


1912 
1913 


1912 

12 

1912 

12 

1912 

20 

1917 

15 

1912 

12 

1917 

15 

1914 

33 

1914 

43 

1914 

20 

1915 

5 

1916 

8 

1912 

20 

1914 

25 

1913 

18 

1916 

28 

1917 
1917 
1913 

15 
15 

27 

1914 
1917 

50 
9 

1914 

39 

1912 

20 

1912 
1912 

20 

20 

18 


33 


Page. 


18 


29 
17 

20 


12 
1 


INDEX. 


691 


Bulletins. 


Appropriations — 

Abstract  of  title,  expenses  for  (Comp.) 

Adjvistment  for  purchases  by  one  bureau  or  department 

from  another  (Comp.) 

Baggage  of  officers  on  Canal  Zone  (J.  A.  G.) 

Buildings  at  military  posts  (Comp.) 

Burial  expenses,  accepted  applicants  for  enlistment 
M.  A.  G 


(J 


■)■ 


Burial  expenses  of  cadets  (Comp.) 

Charging  to  contractor  for  material  furnished  by  Govern- 
ment (Comp.) 

Constriiction  of  temporary  hospitals  (Comp.) 

Contingencies,  headquarters  of  military  departments 
(J.  A.  G.) 

Contracts  for  Army  supplies  in  absence  of  (Comp.) 

Cost  of  repairs  to  building  leased  by  one  department  to 
another  (J.  A.  G.) 

Depositions  for  courts-martial,  how  jjaid  (J.  A.  G.) 

Diversion  of,  by  detail  of  clerks  and  employees  (J.  A.  G.) . 

Employment  of  land  value  expert  (J.  A.  G.) 

Engineer  ecpiipment,  cost  of  freight  on  material  (Comp.) 

Expenses  of  marking  Confederate  graves  (Comp.) 

Expenses  of  officer  attending  prison  association  (Comp.) . 

Expenses  of  rifle  competition  (J.  A.  G .) 

Fees  for  membership  in  associations  (Comp.) 

Freight  cost  on  articles  imported  for  particular  use 
(J^A.  G .) 

General  and  specia,!,  availability  (J.  A.  G.) 

Heat  and  light  for  Navy  and  Marine  Corps  (Comp.) . 

Heating  apparatus  in  new  buildings  (Comp.) 

Heating  and  plumbing  fixtures,  public  buildings  (Comp.) 

Improvement  of  boundary  roads  at  national  parks 
A.  G 


(J. 


■)■ 


Insurance  of  parcel-post  packages  (J.  A.  G.) 

International  Waterways  Commission  (J.  A.  G.) 

Limitation  on  cost  of  construction  of  barracks  and  quar- 
ters (Comp.) 

Lump  sum.     See  Lump-sum  appropriations. 

Medical  attendance  for  seamen  in  Army  transport  serv- 
ice (J.A.  G.) 

Mileage  of  officers  on  civil  business  (J.  A.  G.) 

Military  prisoner  held  by  civil  authorities  (J.  A.  G.) 

Money  exchange,  salaries,  officers  serving  abroad  (Comp.) 

Newspapers  and  periodicals  for  troops  (J.  A.  G.) , 

Payment  of  additional  nurses  (J.  A.  G.) 

Pay  not  to  be  increased  from  lump  sum  (J.  A.  G.) 

Proceeds  from  sale  of  quartermaster  stores  (Comp.) . 

Public  buildings,  cost  of  plumbing  chargeable  to  what 
(Comp.) 

Reimbursement  for  quartermaster  stores  supplied  to 
Marines  while  serving  with  Army  (J.  A.  G.) 

Repair  of  engineer  buildings  for  troops  (Comp.) 

Repair  of  militia  property  (J.  A.  G.) 

Special  and  general,  limit  on  expenditures  for  hospitals 
(J.A.G.)  ^ 


Specific  and  General,  Engineer  School  at  Washington 

Barracks  (J.  A.  G.) • 

Specific  Fund  in  General  Appropriation,  Surplus  (J.  A. 


G.). 


Transfer  of  public  property  (J.  A.  G. ) _ 

Transportation  charges,  condemned  Army  horses  issued 
to  MiUtia  (Comp.) 


191G 

1914 
1914 
1913 

1914 
191G 

1914 
1914 

1913 
1917 

1912 
1913 
1914 
1913 
1913 
1913 
1913 
1913 
1913 

1914 
1913 
1913 
1915 
1913 

1914 
1913 
1913 

1914 


1912 
1913 
1913 
1915 
1914 
1914 
1913 
1917 

1912 

1914 
1913 
1914 

1914 

1914 

1913 
1915 

1915 


Page. 


57 

46 

25 

1 

25 

28 

33 
1 

13 

18 

20 
17 
43 
23 
31 
18 
17 
13 
17 

25 
27 
23 
14 

27 

25 

17 

1 

33 


12 
27 
31 
30 
14 
25 
17 
15 

12 

43 
38 
20 

50 

33 

23 
18 

36 


638 

434 
376 
123 

376 
602 

401 
328 

173 
679 

28 
193 
417 
232 
297 
220 
198 
173 
199 

384 
246 
237 
482 
259 

380 
197 
133 

401 


11 
259 
295 
511 
359 
382 
190 
667 

17 

419 
323 
367 

439 

392 

226 
491 

522 


692 


INDEX. 


Bulletins. 


G.)-.. 


Appropriations — Continued. 

Transportation  of  Mexican  prisoners  (J.  A.  G.) 

Traveling  expenses  of  military  attaches  abroad  (Comp.) . 
Traveling  expenses,  officer  on  duty  in  connection  with 

National  Guard  (J.  A.  G.) 

Appurtenances — • 

Construction  of  term  as  used  in  connection  with  navi- 
gable waters  (J.  A.  G.) 

Architects — • 

(  ontracts,    employment    under    authority    for    public 

buildings  (J.  A.  G.) 

Arms — 

Neutrality,  importation  of  ammunition  and  (At.  Gen.) . . 
Arms  and  Equipment— 

Issue  of,  to  high  schools  (J.  A.  G.) 

Army — 

Appointment  of  National  Guard   Reserve  officers  in 

Regular  (J.  A.  G.) _- 

Bands,  use,  during  sessions  of  International  Congress  of 

Hygiene  and  Demography  (J.  A.  G.) 

Details.    See  Details. 

Discharges.     See  Discharge. 

EnUsted  men.     See  Enlisted  men. 

Hospitals.     See  Hospitals. 

Increase  in  live  increments,  major  fractions  considered 

as  units,  sec.  24,  national  defense  act  (J.  A.  G.) 

Nurses.     See  Nurses,  Army. 

Officers.     See  Officers,  Army. 

Organization,  brigade  headquarters,  enlisted  men  for, 

national  defense  act  (J.  A.  G.) 

Recommissioning  ex-officers  in  (J.  A 
Transportation.     See  Transportation. 
Transports.     See  Army  transports. 
Army  Field  Clerks — • 
See  also  Field  clerks. 

Employment  of,  as  courts-martial  reporter  (J.  A.  G.). . 
Army  Nurse  Corps.     See  Nurse  Corps. 
Army  Regulations — 

Light  allowances  to  officers  of  Revenue-Cutter  Service 

under  (Comp. ) 

Living  expenses  of  civilian  clerks  on  temporary  duty 

(Ct.  Cls. ) 

Officer  traveling  with  detachment  as  escort  to  Mexican 

officer  (J.  A.  G.) 

Operative  on  promulgation,  amendment  as  to  rewards 

(J.  A.  G.) 

Power  of  Secretary  of  War  to  modify  (Ct.  Cls.) 

Army  Reserve— 

Attached  to  Regular  Army,  not  constituent  parts  of 

organizations  (J.  A.  G.) 

Composition  of,  and  obhgations  under  (J.  A.  G.) 

Construction  of  law  authorizing,  full  opinion  (J.  A.  G.) 

Continuous-ser^dce  pay  (Comp. ) 

Effect  of  purchase  of  discharge  (J.  A.  G.) 

EligibiUty  of  enlisted  men  to  be  examined  for  commis- 
sions (J.  A.  G.) 

Employment  of ,  in  civil  ser-vice  (J.  A.  G.) 

Enlisted  men,  f  m-lough  to,  making  up  time  lost  (J.  A.  G.) 
Enlistment  of  members  of,  Organized  Militia,  employ- 
ment as  stablemen  (J.  A.  G.) 

Furlough  of  alien  enlisted  men  to,  naturalization,  sec. 
2166,  R.  S.  (Fed.  Ct.) 


1913 
1914 

1917 


1912 


1912 

20 

1912 

12 

1913 

31 

1917 

15 

1912 

20 

1916 


1916 
1917 


1917 


12 


Page. 


18 


34 
15 


1914 

50 

1914 

46 

1915 

1 

1915 
1914 

1 

8 

1916 
1913 
1912 
1916 
1913 

34 
1 
22 
28 
29 

1915 
1914 
1916 

1 
33 

1 

1916 

8 

1916 

28 

INDEX. 


693 


Bulletins. 


Army  Reserve — Continuod. 

Furlough  of  enlisted  men  indebted  to  United  States 

(J.  A.  G.) 

Gunner's  })ay  on  c'ull  to  colors  (J.  A.  G.) 

Jury  duty  and  taxation  of  soldiers  assigned  to  (J.  A .  G.) . . 

Medical  treatment  of  members  (J.  A.  G.) 

Members  amenable  to  courts-martial  (J.  A.  G.) 

Members  called  to  colors,  physical  disability,  deduc- 
tion of  pay  for  al)sence  (J.  A .  G .) 

Members  in  active  service,  promotion  of  (J.  A.  G.) 

Organization  of,  national -defense  act  (J.  A.  G.) 

Pay  and  allowances,  excused  on  responding  to  call 
(J.  A.  G.) 

Reenlistment  after  four  years'  service  (J.  A.  G.) 

Reenlistment  after  four  years'  service  and  passing  to 
(J.  A.  G.) 

Relation  of  Organized  Militia  to  (J.  A.  G.) 

Right  of  members  to  vote  (J.  A.  G.) 

Transportation  allowances  of  men  furloughed  to  (Comp.) . 
Army  Service  Schools — 

Attendance   at,    for   commission   in   Volunteer  Army 

(J.  A.  G.) 

Army  Supplies — 

Contracts  for  purchase  of  in  absence  of  appropriations 

(Comp .) , 

Army  Transportation — 

Enlisted  men,  sleeping-car  accommodations  (J.  A.  G.). . 
Army  Transports — 

Chartering  to  private  parties  (J.  A .  G.) , 

Crews,  seaman  laws  applicable  to  (J.  A.  G.) 

Families  of  officers  and  others  carried  on  (J.  A.  G.) 

Officers  performing  temporary  duty  on,    quarters  or 
commutation  (Comp.) , 

Use  of,  in  rescuing  American  refugees  inMexico  (J.  A.  G.) 

Use  of,  in  transporting  Chinese  exhibits  to  Panama- 
Pacific  International  Exposition  (J.  A.  G.) , 

Army  Transport  Service — 

Medical  attendance  for  seamen,  appropriation  (J.  A.  G.), 
Articles  of  War — 

Discharges  by  department  commander  under  fourth 
(J.  A.  G.) 

Disposition  of  personal  property  of  retired  soldiers  who 
die  in  Army  hospitals  (J.  A.  G.) , 

Enlisted  men,  discipline,  failure  to  produce  clothing  at 
inspection  (J.  A.  G.) 

Surrendering  soldiers  to  civil  authorities  under  the  fifty- 
ninth  (J.  A.  G.) 

Artillery  Practice — 

Loss  of  private  property  due  to,  articles  necessary  for  use 

in  quarters  (J.  A.  G.) 

Assignee — 

Payment  to,  on  assignment  of  contract  (Comp.) 

Payment  to,  where  surety  as  well  as  (J.  A.  G.) 

Assignment — 

of  Claims.     See  Claims. 

of  Contracts.     See  Contracts. 
Assistant  Veterinarian.     See  Veterinary  Corps. 
Associations — 

Expenses  of  officers  detailed  to  attend  (J.  A.  G.) 

Fees  for  membership  (Comp.) , 

Membership  fees  or  dues  in  International  Association  of 
Chiefsof  Police(J.  A.  G.) 


1913 


1914 

1914 
1914 


1912 
1913 

1912 


1916 

18 

1916 

47 

1914 

25 

1915 

18 

1916 

8 

1913 

1 

1916 

34 

191G 

39 

191G 

34 

1916 

47 

1916 

8 

1914 

43 

1913 

8 

1913 

1 

1915 

36 

1917 

18 

1912 

20 

1912 
1916 
1913 

20 
57 
13 

1912 
1912 

20 
20 

1914 

30 

1912 

12 

1912 

12 

1914 

46 

1912 

20 

1912 

12 

Page. 


43 

43 

43 


20 
17 


694 


INDEX. 


Bulletins. 


Attorneys — 

Employment  of  (J.  A.  G.) 

Automobiles — 

Hire  from  officer,  unauthorized  (J.  A.  G.) 

Hire  of,  for  officers  traveling  on  mileage  status  (Comp.). 

Licenses  or  fees  by  States  for  operation  of  Government 
(J.  A.  G.) 

Military  reservations,  taxation  of  Government  agencies 

(J.  A.  G.)--.- ■.-•:-•■-. 

Officer's  used  in  Government  ser\'ice,  furnishing  oil  and 

gas,  unauthorized  (J.  A.  G.) 

Procurement  of  local  licenses  for  operation  of  (J.  A.  G.). 

Tires,  failure  to  make  guaranteed  mileage  (J.  A.  G.) 

Aviation  Pay — 

Officers  of  Officers'  Reserve  Corps  (J.  A.  G.) 

Aviation  Service — 

Act  establishing  aviation  section,  repeal  of  prior  statute 

(J.  A.G.) 

Additional  pay  for  mounts,  gratuity  (Comp.) 

Assigning  militia  officers  to  (J.  A.  G.) 

Assignment  to,  of  fliers  from  militia  or  civil  life,  reserve 

officers  (J.  A.  G.) 

Assignment  to,  of  reserve  officers  (J.  A.  G.) 

Aviators    commissioned    in    Officers'    Reserve    Corps 

(J.  A.G.) , 

Flight  on  Labor  Day  without  orders,  line  of  duty(J.  A.  G.) 
Increased  pay  for,  depends  on  duty,  not  detail  (Comp.). 

Increased  pay  for,  National  Guard  (J.  A.  G.) 

Increase  in  personnel  ( J.  A.  G.) 

Increase  of  pay  and  allowances  (Comp.) 

Officers  detailed  in,  when  additional  pay  begins  (J.  A.  G.) 
Pay  and  allowances  of  mechanician  on  furlough  (J.  A.  G.) 

Pay  of  officer  while  on  leave  of  absence  (Comp.) 

Awaiting  Orders — 

Status  of  Army  officer  while  on  leave  or  detached  serv- 
ice (J.  A.  G.)  

Awards  and  Proposals — 

Delay  in  making  award  after  opening  bids  (Comp.) 

Liability  of  contractors  for  failure  to  deliver  suppUes 

under  agreement  represented  by  (Comp.) 

Baggage — 

See  also  Change  of  station. 

Change  of  station  of  Army  officers,  horses  not  regarded 

as  (Comp.) 

Ci^'ilian  employees,  change  of  station  (J.  A.  G.) 

Enlisted  men  on  discharge  (J.  A.  G.) 

Excess,  land-grant  deductions  (Comp.) 

Excess  on  change  of  station  (Comp.) 

Excess,  transportation,  apportionment  of  charges  (Comp.) 
Excess,  transportation  of,  change  of  station  (Comp.) . . . . 
Officers'   allowance  on  change  of  station,   promotion 

(J.  A.G.) 

Officers  detailed  to  Panama  Canal  (J.  A.  G.) 

Officers  on  detail  with  higher  rank  (J.  A.  G.) 

Officers  on  mileage  status  (Comp.) 

Officers,  shipment  as  excess  passenger,  cost  of  (J.  A.  G.). . 

Officers  traveling  on  mileage  status  (Comp.) 

Personal,  loss  or  damage,  officers  or  enlisted  men  (Comp.) 

Remission  of  cost  of  excess  (J.  A.  G.) 

Transportation,   officers'   change  of  station  allowance 

(J.  A.  G.) 


1915 
1914 
1914 

1914 

1912 

1915 
1917 
1914 

1917 


1914 
1916 
1916 

1916 
1916 

1916 
1912 
1915 
1916 
1916 
1913 
1913 
1916 
1915 


1914 
1915 
1914 


1912 
1913 
1913 
1914 
1913 
1915 
1916 
1916 

1915 
1914 
1913 
1913 
1916 
1913 
1916 
1914 

1916 


36 
25 
50 

52 

20 

36 
18 
52 

18 


43 
1 

28 

28 
28 

28 
20 
36 
34 

28 
17 
18 
18 
36 


46 
30 

52 


12 

35 

35 

8 

35 
36 
18 
13 

36 
25 
29 
31 
47 
29 
47 
8 

57 


Page. 


518 

521 
387 
447 

453 

41 

521 
671 

449 

671 


416 
540 
591 

591 
591 

591 
31 
523 
610 
591 
199 
210 
578 
523 


429 
510 
453 


20 
309 
310 
351 
313 
525 
586 
559 

521 
377 
268 
301 
629 
285 
630 
350 

638 


INDEX. 


695 


Bulletins. 


Bailment  for  Hire — 

Responsibility  for  loss  of  horse  used  contrary  to  con- 
tract (Comp.) 

Bailments — 

Material  furnished  contractor  destroyed  by  fire,   lia- 

l)ility  for  loss  (J.  A.  G.) 

Bands  for  Coast  Artillery — 

Pay  of  members  of  (J.  A.  G.) 

Bankruptcy  Law — _ 

Army  officers  taking  advantage  of,  to  escape  payment  of 

debts  (J.  A.  G.) 

Barber  Shops — 

Company,    whether    constitute    Government    agency 

(J.  A/G.) 

Barracks  and  Quarters — 
See  also  Quarters,  Army. 

Limitation  on  cost  of  construction  of  (Comp.) 

Belligerents — 

Admission  of  sick  and   wounded   to   Army  hospitals 

(J.  A.  G.) 

Beneficiary — 

See  also  Gratuity. 

Death  of,  before  receiving  the  six  months'  gratuity 

(Comp.) 

Designation  as,  gratuity  pay,  effect  of  will  (Comp.) 

Designation  of,  for  gratuity  (Comp.) 

Bidders — 

See  also  Bids;  Contracts. 

Failure  of  successful,  to  enter  into  contract,  liability 

of  guarantors  (J.  A.  G.) 

Bids — 

See  also  Contracts. 

Accepting  next  higher  (J.  A.  G.) 

Advertising,  alteration  of  (J.  A.  G.) 

Alteration  of  proposal  after  opening  of  (J.  A.  G.) 

Contracts,  acceptance  of  alternative  (Fed.  Ct.) ... 

Contract  with  city  of  New  York  for  certain  work  with- 
out in\ating  (J.  A.  G.) •  -  - 

Delays  of  contractor  in  completing  contract,  exclusion 

of  future  (J.  A.  G.) 

Failure  to  accept  award  within  time  limit,  liability  of 

guarantors  (J.  A.  G.) 

Lease  of  public  property  in  response  to  (J.  A.  G.) 

Billiard  Tables — 

Company,    whether    constitute    Government    agency 

(J.  A.G.) 

Board  on  Medals  of  Honor — 

Findings  of  under  national  defense  act  (J.  A.  G.) 

Boards  of  Survey — 

Finality  of  findings  (J.  A.  G.) 

Bonds — 

Cancellation  of  on  acceptance  of  ne w  ( J .  A .  G . ) 

Certificates  to  contractor's  guaranty  ( J .  A .  G . ) 

Contractors  annual  or  blanket  (J.  A.  G . ) 

Contractors,  collateral  to  secure  performance  of  contract 

(J.  A.G.) 

Effect  of  printed  word  "seal "  (J.  A.  G.) 

Labor  and  material  men,  suit  on  (Fed.  Ct.) 

Material  alteration  of  contracts  (J.  A.  G.) -^ 

Modification  of  contract  releases  sureties  (J.  A.  G.) 

Protection  of  laborers  and  material  men  (J.  A.  G.).. . . . 

Protection    of    workmen    and    material    men,    waiver 

(J.  A.  G.) 


I'Jll 

1!)17 
1910 

1!)14 

1912 

1914 

1914 


1912 
1915 
1916 


1915 


1912 
1912 
1914 
1912 

1917 

1912 

1915 
1917 


1912 

1917 

1913 

1917 
1913 
1913 

1917 
1913 
1913 
1913 
1913 
1913 

1913 


43 

9 
39 


20 
33 
43 


12 
26 
39 


12 
12 
50 
12 

15 

12 

5 
15 

20 

15 

18 

15 
23 
31 

9 

13 

23 

31 

4 

1 


GOG 


INDKX. 


15ull(>tina. 

Year. 

No, 

Page. 

HoNDa — OonHmuHl. 

Surety  nuiy  !»'  pail y  to  cont raot  (J  .  A .  ti ,) 

liu:! 

S 

155 

Whoro  ooiitrart  is  asaigiuul  (J .  A.  it.) 

liM.'i 

S 

155 

BdOKH  — 

I.ihituy,  nuiiIinf^undor])onalty  onv('lo]>i's  (,l.  A.  (i.) 

l!l|'l 

1 

32(1 

UUKIAOI':    IllOADQUAUTKHS 

Orj^'anizatiou,  enlisted  men  lor  (J .  A .  ( 1 .) 

i!iit; 

:m 

()()(> 

HllKlAniKIt    (JKNKUAL8— 

Militia,  ai(I,s,  unassigne*!  lint  (T.  A.  (J.) 

1912 

20 

•11 

JinildingH 

Elected  on  niilitaiy  reservations  nndor  licenses,  title  to 

(J.  A.  <i.) 

I9ir. 

!) 

■173 

Leased,  re])aira  of  lire  damage  (J.  A.  (1.) 

19 11 

20 

3()5 

Public.     (SVc  Public  buildings. 

lUiRKAU  OF  Inmulah  AKFAiua.     Scc  In.-^iiliir  AlTairs,  IWucau 

of. 
Burial  Expenses— 

Ac(^e]ited  a|>])licants  for  enlist  m(>nt  (J.  A.(l.) 

1914 

25 

376 

(^ladei,  a])])roj)riation  (Com]).) 

1916 

191(i 

r  1913 

I   1913 

28 
13 

18 

27 

602 

Olerk,  Quartermaster  Corps  (Comp. ) 

558 

Deceased  general  prisoners  (.1 .  A .  ( i . ) 

211 

247 

Deserter,  killcil  wlijle  al  templing  to  escape  (J.  A.  Ct.).  .  . . 

1915 

18 

488 

Indigent  e.x.-Union  soldiers  dying  in  District  of  Colum- 

bia (J.  A.  G.) 

1915 

1 

456 

Odicers,  soldiers,  and  civilian  employees  (Comp.) 

1913 

8 

165 

lUlHINKSH,  COMMKRCIAI- 

luilisted    men    engaging   in,    hiring   out    automobiles 

(J.  A.  C.) 

1912 
1917 

12 
3 

10 

Furloughed  for  retirement  (J.  A .  ( i . ) 

612 

Carlk — 

Damage  to,  liability  of  o^v^ler  of  vessel  (Fed.  Ct.) 

1917 

il 

657 

CAnKTH-- 

See  aho  Military  Academy. 

AppointiiKMit  of  enlisted  men  as,  eligibility  (J.  A.  G.) 

1917 

<) 

650 

IJurial  ex])iMises,  a])]ii'o])i'ia(,it)n  (Comp.) 

191 C. 

28 

602 

Reappointment  to  Military  Academy  under  sec.  1325, 

R.  S.  (J.  A.  G.) '. 

1912 

12 

11 

(■ANAL  Zone    - 

Sec  (i/so  Panama  Canal. 

Penitentiary,    conlinenuint    of    uulilary    i)ri8onera    in 

(J.  A.  G.y .■ 

1912 

20 

36 

Captains,  Army 

Duly  as  adjutant  of  brigade  when  not  <ii'laile<l  in  Adju- 

tant Gent^ral's  De])artrMenl,  detached  service  (J.  A.  G.) 

1911 

33 

3i)4 

Caroador — 

Mountain  artillery,  rate  of  pay  (J.  A.  G.) 

191(5 

28 

593 

Cavalry- 

Troo])s  of,  participation  in  horse  shows  (J.  A.  G.) 

1915 

1 

458 

('lOMni'KRIES     - 

Dedication  of  roads  through  (J.  A.  G.) 

1913 

27 

252 

Defacement  of  mouumcMls,  rewards  (,l.  A.  G.) 

1913 

13 

181 

Ex])onscs  of  marking  Confederate  graves  (Comp.) 

Im])rovemcnt  of  boundary  roads  (J.  A.  G.) 

1913 

18 

220 

1914 

25 

380 

National,  N\ ho  are  eligible  for superinlendonta  (J.  A.  G.). 

1913 

'1 

14( 

Certikicatic  Oh'  Miairr- 

l'>idi.sl<'d  men,  ])ay  under Hubse(|ueutculislment  (J.A  .(i.) 

1912 

20 

32 

Enlisted  men,  time  of  making  recommendation  for  (.1. 

A.  G.) 

1912 

20 

31 

Chanoe  ok  Station— 

See  also  lUiggago. 

Baggage  allowance.  Army  officer,  horsos  not  regarded 

as  (Com|).) 

1912 

12 

20 

Baggage  allowance  and  crating  (J.  A .  G. ) 

1913 

27 

257 

INDEX. 


607 


JUiIlctiris. 


C'hanoe  of  Station — Continued. 

liairiratce  allowance,  cITeft  of  promotion  (J.  A.  G.) 

Hapi^'au'O  allowance  to  oHiccis  with  detail  rank  (J.  A.  G.)- 

Ua^'trai^e,  transjjorlation  of  excess  (('omp.'^ 

Civilian  employecH.  I)a<;<^aj^fi  allowance  (J.  A.  G.) 

Excess  liaRgajre,  officer's,  transportation (('Omp.) 

Excess  shipment  of  oflicer's  floods  on  (J.  A.  G.) 

Jlor.-es  of  oHicer,  transportation  of  (Comp.) 

Officer  on  S])ecial  mission  abroad  (('t>ni]>.') 

Toniporarv  service,  heat  and  light  allowance  to  familv 

(J.  A.  (J.) 

Transpoitation  of  household  goods  (J.  A.  G.^i 

Chapf.is — 

Donation  of,  to  XTnited  States  (J.  A.  G.) 

Erection  of  .sectarian  on  niilitarj'  reservations  (J.  A.  G.). . 
CnAi'i..\i.\.s — 

Com])Utaf ion  of  ser\'ice,  promotions  (J.  A.  G.) 

Grade  and  pay,  National  Guard  (J.  A.  G.) 

Promotion  of,  service  on  retired  list  (J.  A.  G.) . 
Charoks — 

Certainty  in  allegations  (J.  A.  G.) 

Removal  after  discharge  of  .soldier  (J.  A.  G.) 

Chauffeurs — 

Eight-hour  law  not  applicable  to  (J.  A.  G.) 

Procurenicmt  of  local  licenses  for  Goveniment  motor 

vehicles  (J.  A.  G.) 

Check. s — 

Certified,  received  as  guaranty,  dispo.sition  of  (J.  A.  G.). 
Loss  of  original,  issuance  of  second  original  (Comj).).. 
Chief  Clerk.s — 

I'"xecutive  department,  de.signate  clerks  to  administer 

oaths  (J.  A.  G.) 

Chief  Mu.hician — 

Reduction  to  ranks,  by  regimental  commander  ( J .  A .  ti . ) 
Chief  op  Artillery.    See  Chief  of  Coast  Artillery  Corps. 
(!hief  op  Co.\ht  Artillery  Corps — 

Additional  member  of  General  Staff  Corps,  full  opini.ii 

(.f.A.G.) 

Chiei''  of  Division  of  Militia  Affairs — 

Additional  member  of  General  Staff  Corps,  full  opinion 

(J.  A.G.) 

Chief  of  Quartermaster  Corps— 

Construction  of  law  as  to  duties  in  connection  with  con- 
solidated departments,  full  opinion  (J.  A.  (i.) 

Chief  of  Staff — 

Office  of,  part  of  Army  and  not  of  War  Department 

(Comp.) '. 

Chinese  Exhibit — 

Use  of  Army  transport  for  transporting  to  Panama-Pacific 

International  Exhibition  (J.  A.  G.) f- 

Church  Buildings — 

Erection  of  .sectarian  chapels  on  military  reservations 

(J.  A.G.) 

Civil  Autiiouities — 

Enlisted  men  arrested  and  confined  by,  pay  on  condona- 
tion of  off<'n.se  and  di.scharge  (J.  A.G.) -  • 

Enlisted  men  detained  by,  absent  without  leave  (J. A.G.) 

Ex]»enses  f(jr  dett^ntion  of  soldier  (T.  A.  G.) 

Extradition  of  enlisted  ini^n  to  another  State  for  prose- 
cution by  (.r.  A.G.) 

Surrendering  soldiers  to,  under  fifty-ninth  article  of  war 

(J.A.G.) 

CrviL  Couitr.'^ — • 

Review  of  courts-martial  proceedings  (Fed.  Ct.) 


191G 

I'tir; 

liii,. 
1912 

1913 
19 IG 
1914 

1915 
1915 

191(i 

1917 

1915 
1015 


1912 
191G 

1912 
1912 
1912 

i!>i;{ 


.J  I 

20 

35 
57 

S 

;;ti 
11 


18 

30 
3G 


20 

18 


09 


296 
111 

304 
G35 
345 

52G 
479 

545 

671 

508 
523 


42 
5G9 

'JO 

88 
2(i2 


1914 

39 

411 

1912 

20 

41 

1912 
1912 
1917 

20 
20 
15 

28 

37 

659 

1915 

5 

4(i6 

1912 

12 

4 

1914 

25 

389 

698 


INDEX. 


Bulletins. 


Civil  Employment — 

See  also  Clerks  and  Employees. 

Enlisted  men  accepting,  while  on  furlough  (J.  A.  G.). . . 

Civilian  Employees — 

Computation  of  holiday  pay  for  piecework  (Comp.) 

Holiday  pay  for  temporary  (Comp.) 

Pay  while  receiving  training  in  Enlisted  Reserve  Coqjs 
(J.  A.  G.) 

Stoppages  to  reimbm'se  United  States  (J.  A.  G.) 

Civilians — 

Expenses  for  treatment  in  Government  hospital(J.  A.  G.) 

Medical  supplies  for  camp  of  instruction  (J.  A.  G.) 

Sale  of  Government  property  (fuel)  to  (J.  A.  G.) 

Civilian  Witnesses — 

See  also  Witnesses. 

Compelling  officer  to  proceed  to  point  to  be  identified 

by,  e^adence  against  himself  (J.  A.  G.) 

Civil  Service —  _ 

See  also  Classified  service;  Clerks  and  employees. 

Commission,  appointment  of  retired  naval  officer  to 
position  under  (At.  Gen.) 

Efficiency  ratings,  discharges  or  promotions  (J.  A.  G.). . 

Enlisted  men  of  Army  Reserve,  employment  in  (J.  A.  G). 
Civil  War — 

Charge  of  desertion,  when  may  be  removed  (J.  A.  G.)... 

Deserters,   President's    pardon    proclamation   of    1865 
(J.  A.G.) 


Determining  date  of  enrollment  (J.  A.  G.) 

Medals  of  honor,  how  obtained  (J.  A.  G.) 

Promotion  of  retired  officers  for  eer^dce  in  (J.  A.  G.). . 

Resignation  of  officers  diuing,  desertion  (J.  A.  G.) 

Civil  Works — 

Army  officers  engaged  on  (At.  Gen.) 

Claims — 

Additional  payment  after  final  settlement,  jimsdiction 
(Comp.) 

Assignment  of,  sec.  3744,  ReAdsed  Statutes  (J.  A.  G.). . . 

Caring  for  and  returning  lost  public  property  (J.  A.  G.). 

Cattle  killed  where  troops  had  removed  fence  on  land 
leased  for  maneuvers  (J.  A.  G.) 

Clothing  lost  at  post  laundry  (J.  A.  G.) 

Compromise  of  GoA'ernment  claims  (J.  A.  G.) 

Contractor,  extra  work  due  to  faulty  design  (J.  A.  G.). . 

Contractor's,  extras  not  agreed  upon  in  writing  (J.  A.  G). 

Copies  of  official  records  to  support  (J.  A.  G.) 

Damage  caused  by  torts  of  soldiers  (J.  A.  G.) 

Damage  to  barge  hired  for  public  use  (Comp.) 

Electric  current  not  registered  by  meter  (J.  A.  G.) 

Horses  lost  in  military  service  (Ct.  Cls.) 

Injury  to  general  prisoner  (J.  A.  G.) 

Loss  of  horse  by  officer  (Comp.) 

Loss  of  horses,  in  military  ser^dce  (Ct.  Cls.) 

Loss  of  priA'ate  property,  delay  (Comp.) 

Loss  of  private  property  due  to  Artillery  practice 
(J.  A.  G.) 

Loss  of  private  property  in  military  service  (Comp.) 

Loss  of  private  property  in  military  service  (Ct.  Cls.). . . 

Loss  of  property  in  fighting  fire  on  Government  vessel 
(J.  A.G.) 

Loss  of  vehicle,  hired  by  Government  employee  travel- 
ing on  public  business  (Comp.) 


Year. 


/  1914 
1  1917 

33 

3 

1917 

15 

1917 

18 

1917 

18 

1917 

18 

1915 

5 

1916 

18 

1914 

33 

1914 


1913 


1917 

9 

1912 

12 

1914 

43 

1912 

12 

1914 

20 

1916 

8 

1917 

18 

1915 

1 

1917 

9 

1914 

20 

1914 

1 

1914 

5 

1913 

29 

1917 

15 

1914 

5 

1913 

8 

1916 

8 

1913 

18 

1914 

43 

1913 

35 

1917 

18 

1914 

1 

1915 

21 

50 


1912 

20 

1913 

27 

1914 

33 

1913 

4 

1913 

8 

1913 

1 

1913 

1 

1914 

1 

1915 

9 

Page. 


29 


INDEX. 


699 


Bulletins. 


Claims — Continued. 

Overtime  work  under  eiglit-hour  law  (J.  A.  G.) 

Pay  for  accumulated  leave  (J.  A.  G.) 

Personal  baggage,  loss  or  damage,  ofiicers  or  enlisted 
men  (Comp.) 

Personal  property,  loea  or  damage,  evidence  required 
(Comp.) 

Post  charges,  vessels  liable  to  (U.  S.  Sup.  Ct.) 

Private  property  damaged  by  soldiers  (J.  A.  G.) 

PriA'ate  property  of  officer  destroyed  (Comp.) 

Reimburaement  for  expenses,  hauling  baggage  (Comp.). 

Rental  of  land  purchased  (Comp.) 

Responsibility  for  loss  of  horse  used  contrary  to  contract 
of  hiring  (Comp.) 

Retired  Army  officers  acting  as  agents  in  prosecution  of 
(At.  Gen.) 

Torts  of  Government  employees  (('omp.) 

Under  workmen's  compensation  act  (At.  Gen.) 

Use  of  private  property  in  public  service  (J.  A.  G.) 

Classified  Service — 

See  also  Ci\Tl  service;  Clerks  and  employees. 

Removals,  how  made  (J.  A.  G.) 

War  Department,  tilling  vacancies  in,  under  act  of  Aug. 

23,  1912  (Comp.) 

Clemency — 

Recommendations  (J.  A.  G.) 

Remission  of  sentence  of  Marines,  termination  of  de- 
tachment with  Army  prior  to  execution  of  sentence 

(J.  A.G.) 

Clerical  Positions — 

War  Department,  filling,  under  act  of  Aug.  23,  1912 

(Comp.) 

Clerks  and  Employees — 

See  also  Civil  service;  Classified  service;  Government 
employees. 

Absence,  leave  of,  lump-sum  appropriation  (Comp.) 

Absence  on  account  of  sickness  in  family  (Comp.) .  .  .  .  , 

Absence  on  account  of  vaccination  (J.  A.  G.) 

Admission  to  Government  Hospital  for  Insane  after  dis- 
charge (J.  A.  G.) 

Appointment  of  retired  naval  officer  as  clerk  of  class  3 
(At.  Gen.) 

Battlefield  superintendent,  how  removed  (J.  A.  G.).  . . . 

Civilian,  of  Quartermaster  and  Medical  Corps,  issue  of 
fuel  in  kind  to  (J.  A.  G.) 

Compensation  for  injuries  to  Federal  (J.  A.  G.) 

Copyright  of  photographs  made  by  (J.  A.  G.) 

Debts,  disobedience  of  orders  requiring  specific  pay- 
ments on  (J.  A.  G.) 

Debts,  failure  to  pay  (J.  A.  G.) 

Diversion  of  appropriations  by  detail  of  (J.  A.  G.).  .  .  .  . 

Domestic  servants  not  subject  to  eight-hour  law  (J. A.G.) . 

Efficiency  ratings,  discharges,  and  promotions  (J.  A.  G.). 

Employment  of  Army  field  clerks  as  reporters  (J.  A.  G.) . 

f(J.  A.G.) 


Expenses  while  on  temporary  duty 


(Comp.). 
(Comp.). 

J.  A.G.)... 

Ct.  Cls.)... 


Expert  on  land  values  (J.  A.  G.).. 

Field  clerks.    See  Field  clerks. 

Fort    Bayard,    N.    Mex.,    military    jurisdiction    over 

(J.  A.G.) 


Year. 

No. 

1917 

18 

1914 

20 

1916 

47 

1916 

18 

1917 

9 

1916 

47 

1917 

15 

1916 

8 

1917 

18 

1914 

43 

1912 

20 

1916 

28 

1913 

23 

1917 

18 

1913 

13 

1912 

20 

1916 

1 

1914 

52 

1912 

20 

1913 

23 

1914 

1 

1913 

17 

1912 

20 

1912 

20 

1913 

17 

1914 

43 

1912 

20 

1913 

31 

1914 

46 

1914 

46 

1914 

43 

1913 

17 

1913 

27 

1917 

9 

1913 

1 

1913 

18 

1914 

14 

1914 

25 

1914 

46 

1913 

23 

1912 

20 

Page. 


700 


INDEX. 


Bulletins. 


Clerks  and  Employees — ^'ontinued. 

Government's  right  to  use  inventions  of  (J.  A.  G.) 

on  Government  vessels,  medical  treatment  (J.  A.  G.).  . 

Holiday  pay  for  temporary  (Comp.) 

Hours  of  work  on  Saturdays,  overtime  (J.  A.  G. ) 

Leaves  of  absence  to  attend  military  camps  of  instruc- 
tion (J.  A.  G.) 

Leaves  of  absence,  National  Guard,  called  into  United 
States  service  (Comp.) 

Lump-sum  appropriations,  payment  from.  See  Lump- 
sum appropriations. 

Medical  treatment  in  hospitals  (J.  A.  G.) 

Medical  treatment  of  (Comp.) 

Member  of  District  of  Columbia  Militia,  leave  of  al)- 
sence  (J.  A.  G.) 

Members  of  National  Guard,  leaves  of  absence,  to  en- 
gage in  field  or  coast-defense  training  (J.  A.  G. ) 

Members  National  Guard,  salaries  of  two  positions 
(Comp.) 

Pay  during  absence  without  authority  (Comp.) 

Pay  during  suspension  for  insubordination  (J .  A.  G.) .  . . 

Pay  during  suspension  under  charges  (Comp.) 

Pay  for  accumulated  leave  (J.  A.  G.) 

Pay  for  extra  duty  (Comp.) 

Pay  for  holidays  (J.  A.  G.) 

Pay  for  overtime  (J.  A.  G.) 

Pay  from  lump-sum  appropriations.  See  Lump-sum 
appropriations. 

Pav  while  recei\dng  training  in  Enlisted  Reserve  Corps 
(J.  A.  G.) 

Performing  service  for  foreign  Government,  pay  for 

(j.A.G.) ; 

Preference   to   American   citizens    on    public    works 

(J.A.G.) 

Presents  for  ollicial  superiors  (J.  A .  G.) 

Promotions  and   dismissals  under  civil-service  rules 

(J.A.G.) 

Purchase  of  Government  supplies  from  (J.A.G.) 

Quartermaster  Cor]JS,  burial  expenses  of  (Comp.) 

Quartermaster  Cor]>s,  enlisted  men  substituted  for,  full 

opinion  (J.  A.  G.) 

Quartermaster    Corps,    enlisted    men    to   take    place 

a.  A.G.) 

Ration  allowances  while  under  treatment  in  hospitals 

(J.A.G.) 

Reimbursement  for  meals  at  home  station  (Comp.) 

Removals  of,  how  made  (J.  A.  G.) 

Signal  Corps,  land-grant  deductions  for  transportation 
(Comp.) 

Stoker  on  Government  dredge,  right  to  be  returned  to 
place  of  hire  (Comp.) 

Teamsters  for  Quartermaster's  Department  (J.  A.  G.) 

on  Temporary  duty  expenses.    See  this  title,  Expenses 
while  on  temporary  duty. 

Temporary,  four-hour  days  on  Saturdays  for  (J.  A.  G.) 

Temporary  promotions,  when  prohibited  (Comp.) 

Traveling  expenses,  computation  of  (Comp.) 

Traveling  expenses,  temporary  duty  (Comp.) 


Year. 

No. 

1913 

1 

1913 

17 

1917 

18 

1913 

31 

1915 

39 

1916 

18 

1914 

14 

1914 

14 

1912 

20 

1916 

28 

1917 

9 

1914 

46 

1912 

20 

1914 

20 

1914 

20 

1913 

18 

1913 

1 

1914 

25 

1917 

18 

1913 

1 

1914 

39 

1912 

12 

1913 

18 

1915 

21 

1916 

13 

1912 

22 

1912 

20 

1916 

8 

1916 

47 

f  1912 

12 

1913 

1 

<^  1913 

4 

1913 

13 

i  1913 

17 

1915 

26 

1917 

3 

1913 

35 

1914 

39 

1915 

32 

r  1913 
1  1914 

8 

5 

1  1914 

14 

Page. 


124 
194 
678 
290 

533 

584 


355 
360 

32 

596 

656 

432 
33 
370 
363 
220 
106 
380 


675 

124 

409 
10 

211 
500 
558 

93 

46 

544 
631 
5 
105 
140 
174 
191 

507 

646 
308 


410 
516 
169 
339 
360 


INDEX. 


701 


]  bulletins. 


Clothing — 

Allowance,  thancre  of  initial,  during  enlistment  (J.  A.  G.)' 
Allowance  of,  Militia  mustered  into  Federal  service 

(J.  A.  G .) 

Allowance  of,  National  Guard  mustered  into  Federal 

service  (J.  A .  G .) 

Allowance  to  enlisted  men.     See  Enlisted  m<!n. 
Allowance  to  national  guardsmen.     See  Enlisted  men. 

National  Guard. 
Enlisted  men,  failure  to  produce,  at  inspection,  Article 

of  War  (J.  A.  G.) : 

Theft  of  blanket  by  one  soldier  from  another.  Article 

of  War  (J.  A.  G.) 

Title  to,  issued  (J.  A.  G.) 

Title  to,  issued  to  national  guardsmen  (J.  A.  G.) 

Unifcrm,NationalGuard,  titleto(J.  A.G.) 

Collateral — 

toSecureperformanceof  contract  (J.  A.  G.) 

CoLLEG  ES.     See  Educational  institutions. 
Command — 

Authority  of  retired  oflTicer,  assigned  to  active  duty,  to 

exercise,  over  enlisted  men  (J.  A.  G.) 

Detached  service,  exercising,  when  not  present  with 

com])any,  two-company  commands  (J.  A.  G.) 

Officer  of  Quartermaster's  Department  in  charge  of  post 

(J.  A.  G.) 

Commanders  in  Chief — 

Militia,  aids,  unassigned  list  (J.  A.  G.) 

Commanding  Officers — 

Functionsbf  (J.  A.  G.) 

Commerce,  Department  of — 

Repairs  to  lighthouse  tender  damaged  by  steamer  of 

Quartermaster  Corps  (Comp.) 

Commercial  Business — 

Enlisted   men    engaging   in,    hiring    out    automobiles 

(J.  A.G.) 

Enlisted  men  furloughed  for  retirement  (J.  A.  G.) 

Commissioned  Officers.     See  Officers,  Army. 
Commissions — 

See  also  Officers,  Army. 

Army  officer,  issued  in  name  of  deceased  person  (At. 

Gen.) 

New,  for  officers  of  constituent  departments  of  Quarter- 
master Cor])s  (J.  A.  G.) 

Common  Carriers — ■ 

Deductions  for  loss  occurring  in  prior  shipment  (Comp.) . 
Disposition  of  Government  horse  injured  while  in  ship- 
ment (J.  A.  G.) 

Fire  loss  of  public  propertjr  (J.  A.  G.) 

Reimbursement  of  cost  of  inspection  of  horses  at  State 

lines  (Coriip.) 

Commutation  of  Quarters.    See  Quarters,  Army. 
Company  Exchange — 

Purchase  of  supplies  from  (J.  A.  G.) 

Company  Funds — 

Disposition  of  proceeds  of  sales  of  manure  from  ambu- 
lance companies  (J.  A.  G.) 

Expenditure  of,  intoxicating  Hrpiors  (J.  A.  G.). ... 

Not  available  for  increa.sing  compensation  in  enlisted 

grade  (J.  A.  G.) 

Compensation.     See  Pay. 


1913 
1917 
1917 

1912 

1912 
1913 
1917 
1917 

1917 

1914 
1914 
1914 
1912 
1914 

1914 


1912 
1917 


Page. 


1912 

12 

1914 

33 

1914 

50 

1914 
1913 

39 
31 

1915 


1913 


1914 
1916 

1916 


1 
15 
15 

20 

20 
1 
3 
9 

9 

52 
33 
25 
20 
25 

46 


12 
3 


23 


50 

8 

47 


702 


INDEX. 


Bulletins. 


Comptroller  op  the  Treasury — 

Decision  of,   overruled,  effect  on  unsettled  accounts 
((^omp.) _. 

Finality  of  decisions  (J.  A.  G.) 

Jurisdiction  over  disbursing  officers'  accounts  (Comp.). . 

Right  of  disbursing  officers  to  advance  decisions  (J.  A.  G.) 
Confession — 

Corroborative  evidence  in  case  of  (Fed.  Ct.) 

Confidential  Plans — 

Contracts,  Returns  Office,  disclosure   of,  in  returns  to 

(At.  Gen. ) 

Confinement — ■ 

Absence  from  active  duty  on  account  of,  forfeiture  of  pay 
(Comp.) 

Awaiting  trial  and  result,  for  desertion,  not  counted 
toward    completion    of    enlistment    on    restoration 

(J.  A.  G.) 

Connecticut — ■ 

Discrimination  against  Army  uniform,  etc.,  prohibited. . . 
Contingencies  of  Army — 

Burial  expenses  of  general  prisoner  (J.  A.  G.) 

Cost  of  holding  military  prisoners  by  ci\dl  authorities 
(J.  A.G.) 

Reward  for  recovering  public  property  (J.  A.  G.) 

Contingent  Expenses — 

Burial  expenses  of  general  prisoner  (J.  A.  G.) 

Continuous-Service  Pay — 

Service  in  Army  Reserve  (Comp.) 

Contractors — • 

See  also  Contracts. 

Adjustment  of   mistakes  made  in   final  payment  to 
(Comp.) 

Charging  cost  of  material  furnished  by  United  States  to 
(Comp.) 

Charging  with  cost  of  work  voluntarily  furnished  by 
United  States  (Comp.) 

Claims  for  extras  not  agreed  upon  in  writing  (J.  A.  G.) . . 

Compromise  of  Government  claims  with  (J.  A.  G.) 

Continuing  labor  on  other  contracts  after  eight-hour 
limit  (J.  A.  G.) 

Control  over  employees  and  conditions  of  manufacture 
(J.  A.G.) .-•-.-•-- 

Default  in  furnishing  supplies,  surety,  appropriations 
(J.  A.G.) 

Defaulting,  withholding  payments  for  benefit  of  labor 
and  material  men  (J.  A.  G.) 

Default  of,  liability  of  surety,  procedure  (J.  A.  G.) 

Delays  in  completion  of  contract,  exclusion  of  future 
bids  (J.  A.  G.) 

Delivery  of  supplies  after  expiration  of  contract  (Comp. ) . 

Liability  for  damage  to  property  before  acceptance  by 
United  States  (J.  A.  G.) 

Liability  for  failure  to  deliver  supplies  under  agree- 
ment represented  by  proposal  and  award  (Comp.) 

Liability,  material  destroyed  by  fire  (J.  A.  G.) 

May  furnish  annual  bond  (J.  A.  G.) 

Measure  of  damages  against,  upon  annulment  of  con- 
tract on  default  (Fed.  Ct.) : 

Notice  to  make  delivery  of  articles  purchased,  suffi- 
ciency of  (J.  A.  G.) 

Relief  from  furnishing  supplies  because  of  increased 
cost  due  to  European  war  (At.  Gen.) 


Year. 

No. 

Page. 

1913 
1913 
1917 
1914 

38 

29 

15 

8 

322 
268 
669 
345 

1917 

18 

681 

1912 

12 

21 

1914 

50 

446 

1917 

3 

640 

1917 

18 

683 

1913 

27 

247 

1913 
1915 

31 

14 

295 

481 

1913 

27 

247 

1916 

28 

601 

1915 

9 

475 

1914 

33 

401 

1914 
1915 
1916 

33 

1 
8 

402 
457 
545 

1913 

8 

158 

1913 

38 

316 

1916 

34 

607 

1914 
1915 

50 
21 

440 
496 

1912 
1915 

12 
9 

5 

476 

1913 

8 

154 

1914 
1917 
1913 

52 

9 

31 

453 
649 
290 

1914 

39 

415 

1912 

12 

8 

1915 

5 

470 

INDEX. 


703 


Bulletins. 


Contractors — Continued. 

Relief  from  obligation  in  excess  of  estimated  require- 
ments (J.  A.  G) 

Relief  of,  advance  of  material  and  demand  for  skilled 
labor  (J.  A.G) 

Supplies,  relief  on  account  of  increased  price  due  to 
European  war  (J.  A.  G.) 

Use  of  penalty  envelope  (J.  A.  G.) 

Contracts-- 

See  also  Bidders;  Bids;  Contractors. 

Acceptance  of  supplies  on  conditions  (J.  A.  G.) 

Acceptance  of  work  before  completion  (J.  A.  G.) 

Adjustment  of  mistakes  made  in  final  payment  (Comp.) . 

Advertising,  accepting  next  higher  bid  (J.  A.  G.) 

Advertising,  alteration  of  bids  (J.  A.  G.) 

Advertising  for  bids  (J.  A.  G.). 

Advertising,  increasing  quantities  under  (J.  A.  G.) 

Alterations  affecting  sureties  (J.  A.  G.) 

Annual  supplies,  quantity  contemplated  (J.  A.  G.) 

Annulling  for  default  and  reletting,  measm-e  of  damages 
(Fed.  Ct.) 

Application  of  eight-hour  law  to,  act  of  June  19,  1912 
(At.  Gen.) 

Application  of  eight-hour  law  to  informal  (J.  A.  G.) 

Ascertainment  of  damages  for  delays  (Comp.) 

Assignment  of  (J.  A.  G.) - 

Assignment  of,  payment  to  assignee  (Comp.) 

Assignment  of,  payments  to  original  contractor  (Comp.) . 

Assignment  of,  to  surety,  payment  to  assignee  (J.  A.  G.) . 

Authority  of  postmasters  to  administer  oaths  to  officer's 
retiu-ns  of  (J.  A.  G.) , 

Bailments,  liability  of  bailee  (J.  A.  G.) 

Bid  and  acceptance  not  a  contract  (J.  A.  G.) 

Bids,  acceptance  of,  alternative  bids  (Fed.  Ct.) 


Bids  received  after  hour  for  opening  (J.  A.  G.)- . 


G.)... 


Binding  Government  for  indefinite  amount  (J.  A 

Bonds  for  protection  of  workmen  (J.  A.  G.) 

Breach  as  to  deliveries,  measure  of  damages  (Comp.). . . 

Breach  of,  deductions  (Ct.  Cls. ) 

Breach,  settlement  of  damage  by  auditor  (Comp.) 

Certificate  on  bonds  as  to  sufiiciency  (J.  A.  G.) 

Change  in  statutory  requirements  as  to  formal  (J.  A.  G.) . 

Charging  cost  of  work  voluntarily  furnished  by  Govern- 
ment (Comp.) 

Charging  to  contractor  cost  of  material  f  lunished  by  the 
United  States  (Comp.) 

Claim  for  electric   current  not  registered   by   meter 
(J.  A.G.) .-:--- 

Claim  of  contractor  for  extras  not  agreed  upon  in  writing 
(J.  A.  G.) ^. 

Claim  for  extra  work  due  to  faulty  design  (J.  A.  G.) 

Collateral  to  secure  performance  (J.  A.  G . ) 

Competition  useless,  supplemental  contract  with  original 
contractor  (J.  A.  G.) 


1917 

1917 

1914 
1915 


1913 
1913 
1915 
1912 
1912 
1917 
1912 
1913 
1916 

1914 

1912 
1913 
1913 
1913 
1914 
1913 
1914 


Construction  of  (J.  A.  G.) 

Construction  of,  claim  for  extra  compensation  (J.  A.  G.). 

Correction  of  mistake  (U.  S.  Sup.  Ct.) 

Cost  of  work,  extra  work  (Ct.  Cls.) 

Damage  for  breach  of  parole  contract  (Fed.  Ct.) 


1914 

1914 

1913 

1915 
1917 
1917 

1912 
1917 
1917 
1912 
1917 
1912 
1913 


15 

18 

46 
18 


17 
27 
9 
12 
12 
15 
12 
31 
13 

39 

20 
8 
29 
8 
43 
17 
43 

52 

9 

18 

12 

18 

28 

14 

1 

1 

8 

14 

13 

23 

9 

33 

33 

29 

1 

18 

9 

20 
9 

15 
12 
9 
12 
38 


Page. 


660 

673 

431 
491 


192 

248 

475 

6 

G 

659 

6 

291 

556 

415 

52 
158 
282 
155 
423 
200 
417 

451 
649 
212 
24 
212 
227 
355 
108 
109 
166 
485 
558 
227 
471 

402 

401 

269 

457 
673 
649 

33 

650 

660 

6 

656 

24 
324 


704 


INDEX. 


Bulletins. 


Contracts — Continued . 

Damaf^e  for  delay,  responsibility  of  United  States 
(J.A.  G.) _. 

Damage  to  barge  hired  for  public  use  (Comp.) 

Damage  to  contract  property  before  acceptance  (J.  A.  G.). 

Default  of  contractor,  liability  of  siurety,  new  contract 
(Fed.  Ct.) 

Delay  in  approval,  time  for  performance  (Comp.) 

Delay  in  completion,  cost  of  inspection  (Comp.) 

Delay  in  making  award  (Comp.) 

Delay,  liquidated  damages  (Comp.) 

Delays  in  completing,  unforeseeable  cause  (Comp.) 

Delays  in  performance,  adjustment  of  unliquidated 
da.mages  (J.  A.  G.) 

Delays  in  performance,  damages  (Comp.) 

Delays  in  performance,  exclusion  of  futiu-e  bids  (J.  A.  G.) 

Delays  in  performance,  excuses  (J.  A.  G.) 

Deliveries  of  supplies  after  expiration  of  (Comp.) 

Delivery  of  supplies  after  expiration  of  contract  (Comp.). 

Eight-hour  law,  application  to  retaining  bulkheads  sup- 
plied by  .contractor  (J.  A.  G.) 

Employment  of  alien  labor  (J.  A.  G.) 

in  Excess  of  appropriations  (J.  A.  G.) 

Failure  of  defaulting  contractor  to  pay  laborers  and  ma- 
terial men,  withliolding  payments  (J.  A.  G.) 


Failure  of  subject  matter  of,  due  to  act  of  God  (J.  A.  G.). 

Failure  of  successful  bidders  to  enter  into,  liability  of 
guarantors  (J.  A.  G.) 

Failure  to  accept  bid  within  time  limit,  liability  of 
guarantors  (J.  A.  G.) 

Failure  to  perform,  purchase  in  open  market,  damages 
(Comp.) 

Filing  supplemental,  in  returns  office  (J.  A.  G.) 

Final  pavment  without  protest,   reopening  accounts 
(Comp.) ;- 

Final  settlement,  claim  for  additional  payment,  juris- 
diction (Comp.) 

Formal,  for  purchase  of  supplies  (Comp. ) 

Formal,  sec.  3744,  Revised  Statutes,  construed  (Fed. 
Ct.) 

Form  for   leasing   quarters  by   offer  and   acceptance 
(Comp.) 

Government  assistance,  adjustment  (Comp.) 

Impossibility  of  performance  (J.  A.  G.) 

Indemnity  against  infringement  of  patents  (J.  A.  G.) 

Liability  of  Government  as  "carrier  of  contract  supplies 
(J.  A.  G .) 

liquidated  damages  after  supplemental  contract  (Comp.) 

Liquidated  damages,  deduction  for,  where  none  in  fact 
resulted  (Comp. ) 

Liquidated  damages,  waiver  of  time  limit  (Ct.  Cls.) 

Note. — This  decision  reversed  by  United  States 
Supreme  Court. 

Loss  by  fire  before  acceptance  of  work  (J.  A.  G.) 

Misstatements  in  specifications,  warranty  (Fed.  Ct.) 

Modifications  of,  and  payment  of  damages  (At.  Gen.). . . 

Modifications  of,  releases  sureties  (J.  A.  G.) 

Notice  to  make  delivery  of  articles  pui'chased,  suffi- 
ciency (.1.  A.  G.) 

Open-market  })urchases  as  measure  of  damage  (Comp.)  . 

Open-market  purchases,  order  in  excess  of  needs  during 
life  of  1  Comp. ) 


1913 
1914 
1913 

1915 
1913 
1913 
1915 
1914 
1914 

1912 
1913 
1912 
1913 
1915 
1916 

1914 
1913 
1913 

1914 
1915 
1913 

1915 

1915 

1914 
1914 

1913 

1917 
1915 

1916 

1914 
1913 
1913 
1912 

1914 
1914 

1915 
1913 


1913 
1914 
1912 
1913 

1912 
1913 

1915 


29 

1 

17 

14 
18 
17 
30 
20 
46 

12 

27 

12 

38 

9 


33 

18 

1 

50 

5 

29 

5 

5 

5 
14 

17 

9 
5 


33 

27 
29 
12 

5 
25 

14 


35 

25 

12 

4 

12 
8 


4S2 
170 


304 

388 

20 

141 

8 
166 

476 


INDEX. 


705 


Bulletins. 


Contracts — Continued. 

Operation  of  eitj;lit-liour  law  (J.  A.  G.) 

Option  to  increase  quantities  (J.  A.  G.) 

Payments  to  holder  of  power  of  attorney  (J.  A.  G.) 

Payments  where  partnership  is  dissolved  (J.  A.  G.) 

Penalty    for    delay    in    performing,    actual    damages 
(J.  A.  G.) 

Post  exchanges  may  contract  with  Government  (J.  A.  G.). 

Projectiles  and  smokeless  powder,  eight-hour  law  (At. 
Gen.) 

Protection  of  laborers  and  material  men  (J.  A.  G.) 

Public  buildings,  arcliitecta  employed  under  authority 
for  (J.  A.  G.j 

Public  works,  separate  agreement  under  sec.  3717,  R.  S. 
(J.  A.  G.) 

Purchase  of  supplies  for  Army  in  absence  of  appropria- 
tions (Comp.) 

Purchase  of  supplies  from  persona  in  military  service 
(JAG.) 

Release  of  contractor  from  performance  (J.  A.  G.) 

Relief  from,  where  troops  are  removed  (J.  A.  G.) 

Relief  of  contractor,  advance  of  material  and  demand 
for  skilled  labor  (J.  A.  G.) 

Replacing  automobile  tires  on  failure  to  make  guar- 
anteed mileage  (J.  A.  G.) 

Requirements  under  eight-hour  law  (J.  A.  G.) 

Return  of  (Returns  Office),  disclosure  of  confidential 
plans  (At.  Gen.) 

Right  of  Government  to  cancel  (J.  A.  G.) 

Supplemental  agreements  (J.  A.  G.) -  -  -  - 

Supplemental,    competition   useless,    agreement   with 
original  contractor  (J.  A.  G.) - 

Supplemental,  covering  matter  not  included  in  original 
(J.  A.  G.) 

Supplemental,  liquidated  damages,  waiver  (Fed.  Ct.).. 

Supplemental,  time  for  completion  (Comp.) 

Supplemental,  time  for  performance  (Ct.  Cls.) 

Supplemental,  to  cover  defectivework  (J.  A.  G.) 

Supplementary,  time  for  completion  (J.  A.  G.) 

Supplies,  relief  on  account  of  increased  ((.T.  A.  G.")... 
prices  due  to  European  war \(At.  Gen.) . 

Supplies,  renewals  for  new  fiscal  year  (Comp.) 

Surety  may  be  party  to  contract  (J.  A.  G.)... 

Time  for  completion,  deductions  for  delays  (Comp.) 

Time  for  completion,  extension  (Comp.) 

Time  for  completion,  liquidated  damages  (Ct.-  Cls.^) 

Unforeseen  conditions,   not  contemplated  by  parties 
(J.  A.  G.) ; 

Unforeseen  difficulties  in  performance  of  (Fd.  Ct. ) 

Unliquidated  damages,  breach  of,  jurisdiction  of  ac- 
counting officers  (Comp.) 

Waiver  of  defects  in  goods  delivered  (J.  _A.  G.) 

Warranty  of  existing  conditions,  inspection  (Ct.  Cls.). . 

When  requirements  as  to  advertisements  are  satisfied 
(J.  A.  G.) 

Withdrawal  of  bids  before  acceptance  (At.  Gen.) 

Written  proposals  and  acceptances,  transportation  rates 

(Comp.) 

Contract  Surgeons— 

Status  as  to  pay  and  allowances  (J.  A.  G.) 


Year.   No. 


Page. 


1914 
1913 
1914 
191:} 

1912 
1913 

1913 
1913 

1912 

1912 

1917 

1914 
1913 
1913 

1917 

1914 
1913 

1912 
1913 
1913 

1912 

1914 
1914 
1913 
1914 
1913 
1913 
1914 
1915 
1914 
1913 
1913 
1915 
1913 

1916 
1916 

1914 
1913 
1912 

1913 
1913 

1915 

1913 


5 
1 

8 
23 

20 
23 

1 

1 

20 

20 

18 

43 
17 
13 

38 

52 
1 

12 

38 

4 

20 

39 
46 
13 
20 
27 
29 
46 

5 
14 

8 
17 
14 
17 

34 

8 

46 
17 
12 


17 

1 

38 


332 
109 
345 
230 

33 
231 

137 
109 

34 

34 

079 

421 

192 
175 

673 

449 
109 

21 
175 

147 


408 
436 
183 
373 
248 
270 
431 
470 
307 
155 
200 
482 
201 

008 
552 

433 

192 
24 

156 
205 

462 

316 


93668°— 17- 


-45 


706 


IISTDEX, 


Bulletins. 


Copyrights —  - 

Compilations  by  Government  clerks  (J.  A.  G.) 

Photographs  made  by  Government  employees  (J.  A.  G.) 
Corps  op  Engineers — 

See  Engineers,  Corps  of. 
Cosmetics  and  Perfumeries — 

Sales  by  post  exchanges,  internal-revenue  stamps  (J. 

A.  G.) 

Counsel — 

Courts-martial,  officers  of  Judge  Advocate  General's  De- 
partment not  available  as  (J.  A.  G.) 

Courts-martial — 

See  aZ.w  Discipline;  Punishment;  Sentences. 

Accuser  as  member  of  court  (J.  A.  G.) 

Carelessness  delaying  action  on  record  of  trial  (J.  A.  G.). 

Combining  separate  offenses  to  make  offense  of  grand 
larceny  (J.  A.  G.) 

Conduct  regulations,  punishment  additional  to  sentence 
imposed  by  (J.  A.  G.) 

Depositions,  expenses  of  taking  (J.  A.  G.) 

Discipline,  effect  of  approval  of  sentence  by  reviewing 
authority,  a  portion  of  which  is  simultaneously  re- 
mitted (J.  A.  G.) 

Enlisted  men.  Marine  Corps,  serving  with  Army,  allow- 
ances on  discharge  (J.  A.  G.) 

Findings,  amending  specification,  failure  to  state  offense 
(J.  A.  G.) 

Findings,  lack  of  care  by  court  (J.  A.  G.) 

Findings,  resulting  in  delay  (J.  A.  G.) 

Findings,  trials  for  desertion,  absence  without  leave 
(J.  A.  G.) 

Hearsay  evidence,  not  admissible  because  made  by 
officer  in  official  investigation  (J.  A.  G.) 

Illegally  constituted,  effect  (J.  A.  G.) 

Jurisdiction  of  special  (J.  A.  G.) 

Legality  of  sentence  of  stoppage  of  pay  to  reimburse  post 
exchange  (Comp. ) 

Meml)er  of  court  as  witness  for  prosecution,  plea  of 
guilty  (J.  A.  G.) 

Naval,  jurisdiction  of,  for  offense  committed  by  Marine 
while  detached  serving  with  Army  (Fed.  Ct.) 

Objection  to  member  can  be  made  at  any  time  in  pro- 
ceedings (J.  A.  G.) 

Officers  of  Judge  Advocate  General's  Department  as 
counsel  (J.  A.  G.) 

Officers  preferring  charges  sitting  as  members  of  court 
(J.  A.  G.) 

Pay  and  allowances  of  dishonorably  discharged  soldiers 
during  suspension  of  sentence  (Comp.) 

Power  of,  to  reduce  noncommissioned  officer  to  noncom- 
missioned officer  of  lower  grade  (J.  A.  G.) 

Probation,  period  of  duty  under  enlistment  (J.  A.  G.)... 

Publication  of  sentence,  jurisdiction  to  amend  (J.  A.  G.). 

Punishment  additional  to  sentence  imposed  by,  conduct 
regulations  (J.  A.  G.) 

Record,  erroneous,  lack  of  care  (J.  A.  G.) 

Record,  erroneous,  reconvening  court  (J.  A.  G.) 

Record,  incomplete,  correction  (J.  A.  G.) 

Records,  unnecessary  return  to  court  (J.  A.  G.) 

Remission  of  sentence  of  Marines,  termination  of  de- 
tachment with  Army  before  execution  of  (J.  A.  G.). . 

Retention  of  soldiers  guilty  of  moral  turpitude  not 
favored  (J.  A.  G.) 

Retired  officers  members  of  (J.  A.  G.) 


Year. 

No. 

1913 
1913 

1 
31 

1915 

1 

1915 

9 

1914 
1915 

8 
39 

1914 

39 

1914 
1913 

46 
17 

1912 

12 

1915 

30 

1915 
1915 
1915 

39 
36 
36 

1915 

36 

1917 
1913 
1913 

18 
38 
38 

1914 

33 

1914 

52 

1915 

36 

1917 

18 

1915 

9 

1914 

8 

1914 

52 

1916 
1915 
1915 

13 

1 
5 

1914 
1915 
1915 
1915 
1915 

46 
36 
36 
36 
39 

1914 

52 

1917 
1917 

18 
15 

Page. 


INDEX. 


707 


Bulletins. 


Courts-martial— Continued . 

Review  of  proreedings  by  ci\-il  courts  (Fed.  Vt.) 

Sentence  forfeiting  pay — effect   of   on   certain  items 
(('omp.) 

Sentence    not    complete    until    action    of    re^'ie\ving 
authority  (J.  A.  G.) 

Sentence  of  dishonorable  discharge,  effect  on  prior  un- 
served enlistment  (J.  A.  G.) 

Sentence    of    dishonorable    discharge,    suspension    of, 
when  proper  ( J .  A .  G . ) 

Sentence  of  forfeiture  of  pay,  when  commences  to  nni 
(Comp.) 

Sentence  to  dishonorable  discharge  while  serving  prior 
sentence,  cumulative  sentences  (J.  A.  G.) 

Sentences,  extended  periods  of  confinement  not  includ- 
ing hard  labor  (J.  A.  G.) 

Sentences,  failure  to  follow  prescribed  forms  (J.  A.  G.)., 

Summary  and  special  courts,  jurisdiction  (J.  A.  G.) 

Summary  courts,  appointment  of  (J.  A.  G.) 

Summary  courts,  appointment  of  medical  reserve  of- 
ficers as  (J.  A.  G.) 

Summary  courts,  con.stitution  of  (J.  A.  G.) 

Summary  courts,  eligibility  of  retired  officers  as,  when 
assigned  to  recrvxiting  duty  (J.  A.  G.) _. . . 

Summary  courts,  eligibility  of  retired  officers  on  active 
staff  duty  to  serve  as  (J.  A.  G.) 

Suspended  sentence,  form  for  (J.  A.  G.) 

Suspended  sentence,  pay  during  confinement  (J.  A.  G.) 

Theft  of  blanket  by  one  soldier  from  another.  Article  of 
War  violated  (J.  A.  G.) 

Trial  of  officers  of  Philippine  Scouts  (Sup.  ('t.,  P.  I.)... 

Trial  of  officer  who  availed  himself  of  bankruptcy  law 

to  escape  payment  of  debts  (J.  A.  G.) 

Criminal  Code — 

Federal,   section  13,    "IVIilitary   expedition   or  enter- 
prise "  (Fed.  Ct.) 

Customs  Stamp  Tax — 

Philippine  Islands,  exemption  of  Government  property 
(At.  Gen.) 

Soldier's  baggage  (J.  A.  G.) 

Damages — 

Actual,  for  delay  in  performance  of  contracts  (J.  A.  G.). 

Adjiustment  of  unliquidated,  for  delays  in  performance 
of  contract  ( J .  A .  G . ) - 

Contracts,  modification  and  payment  of  (At.  Gen.) 

Delay  in  pert'ormance  of  contracts  (Comp.) 

Delays  in   completing   contract,    unforseeable   causes 
(Comp.) 

Liabilitv  of  contractor  until  property  iB  turned  over  to 
United  States  (J.  A.  G.) ■_-■ 

Liability  of  town  for  damages  resulting  from  defective 
bridge  (J.  A.  G.) 

Liquidated,  deduction  for,  where  none  in  fact  resulted 
(Comp.) 

Measure  of,  after  supplemental  contract  (Comp.) 

Measure  of,  against  contractor  on  annulment  and  relet- 
ting (Fed.  Ct.) -  -  ■ 

Measure  of,  for  Government  horse  injured  during  ship- 
ment by  common  carrier  ( J .  A .  G . ) 

Misstatement  in  specifications,  warranty  (Fed.  Ct.) 

Mistake  in  transmitting  telegram  (J.  A.  G.) 

Private  property  by  tort  of  officer  (J.  A.  G.) - . 

Property  constructed  under  contract  damaged  before 
acceptance  (J.  A.  G.) 


Page. 


1914 

1915 

1913 

1916 

1915 

1915 

1915 

1915 
1915 
1913 
1913 

1914 
1914 

1915 

1914 
1914 
1914 

1912 
1913 

1914 

1916 

1912 
1915 

1912 

1912 
1912 
1913 

1914 

1913 

1913 

1915 
1914 

1914 

1914 
1914 
1914 
1913 

1913 


25 
36 
13 

8 
36 

9 

36 

39 
39 
35 
13 

52 
46 


52 
46 
46 

20 
31 

52 


34 


12 
14 

20 

12 
12 
29 

46 


14 
25 

39 

39 
25 
46 

17 

17 


389 

524 

176 

545 

532 

477 

518 

537 
537 
305 
177 

450 
428 

475 

450 
428 
428 

35 

302 

452 

614 

23 

481 

33 

7 
20 

282 

432 

154 

141 

482 
384 

415 

412 
388 
428 
193 

193 


708 


INDEX. 


Bulletins. 


Damages — Continued. 

Piibiic  property  on  account  of  neglect  (J.  A.  G.) 

Repairs  to  private  barge  damaged   by   Government 

(Comp.) 

Settlement  of,  by  auditor,  breach  of  contract  (Comp.). . 

Torts  of  Government  agents  (J.  A.  G.) 

Torts  of  soidiers,  liability  (J.  A.  G.) 

Unliquidated,  breach  of  contract,  jurisdiction  of  ac- 
counting officers  (Comp.) 

Death  Gratuity — 

See  also  Beneficiary;  Gratuity. 

Statute  not  applicable  to  Nurse  Corps  (Comp.) 

Debts — 

Civilian  employees,  failure  to  pay  (J.  A.  G.) 

Due  United  States,  deduction  from  travel  pay  of  en- 
listed men  on  discharge  (Comp.) , 

Ofhcer  availing  himself  of  bankruptcy  proceedings  to 

escape  payment  of  ( J .  A .  G . ) 

Stoppage  of  pay  of  enlisted  men  to  reimburse  United 

States  (J.  A.  G.) - 

Deceased  Persons — 

Army  officer,  issue  of  commission  in  name  of  (At.  Gen.). 
Enlisted  men ,  disposition  of  valueless  effects  of  (J.  A .  G.) 
Enlisted  men,  gratuity,  what  constitutes  misconduct 

(J.  A.  G.) 

Officers  and  soldiers,  gratuity,  carelessness  or  accident 

not  misconduct  (J.  A.  G.) 

Decisions  of  Comptroller.     See  Comptroller  of  the  Treas- 
ury. 
Deductions  from  Pay.     See  Pay  of  enlisted  men;  Pay  of 

officers. 
Delegates — 

V/ar  Department  representative  at  refrigeration  con- 
gress (J.  A.  G.) 

Delegation  op  Authority — 

Sign  transportation  requests  (J .  A.  G.) 

Dental  Corps — 

Retirement  of  officers  on  failure  to  pass  physical  exam- 
ination (J.  A.  G.) 

Dental  Surgeons — 

Absence  from  disease  due  to  misconduct  ( J .  A .  G . ) 

Absence  without  proper  authority  (J.  A.  G.) 

Acting,  not  Army  officers  (J.  A.  G.) 

Acting,  tenure  and  discharge  (J.  A.  G.) 

Advancement  in  rank,  pay,  and  allowances  (J.  A.  G.). . 
Length  of  service,  computation  under  national  defense 

act  (Comp.) 

Relative  rank,  national  defense  act  (J.  A.  G.) 

Reorganization  of  corps  under   national    defense    act 

(J.  A.  G.) 

Tenure  and  discharge  of  acting  (J.  A.  G.) 

Department — 

of  Commerce.     See  Commerce,  Department  of. 
of  Interior.     See  Interior,  Department  of  the. 
Department  Commanders — 

Discharge  by,  under  fourth  article  of  war  (J.  A.  G.) 

Depositions — 

Essential  facts  to  be  covered  (J.  A.  G.) , 

Expenses  of,  for  courts-martial,  how  paid  (J.  A.  G.).  -. . 
Deposits — • 

Enlisted  men,  disposition  of  (Comp.) 

Enlisted  men,  liability  of.  indebtedness  to  United  States 

and  post  exchange  (Comp.) 

Forfeiture  of,  by  desertion,  restoration  to  duty  (J.  A.  G.) . 


Year. 

No. 

1913 

8 

1914 
1916 
1912 
1914 

5 
13 

20 
20 

1914 

46 

1917 

18 

1914 

46 

1912 

12 

1914 

52 

1915 

1 

1912 
1913 

12 

27 

1912 

12 

1912 

12 

1913 

31 

1914 

1 

1917 

18 

1913 
1913 
1915 
1913 
1916 

29 

29 

5 

27 
47 

1916 
1916 

28 
34 

1916 
1913 

18 
27 

1912 

12 

1915 
1913 

39 
17 

1913 

35 

1916 
1915 

13 

39 

Page. 


162 

337 

558 

35 

366 

433 


679 

427 

20 

452 

461 

23 
253 

11 

10 


293 
327 

677 

277 
277 
464 
250 
623 

603 
608 

570 
250 


535 
193 

311 

559 
533 


INDEX. 


709 


Bulletins. 


Deserters — 

See  also  Desertion. 

Apprehension  of  wrong  man,  expenses  (Comp.) 

Disapproval  of  sentence,  trans] >ortation  from  place  of 
trial  to  organization,  stoppage  for  (J.  A.  G.) 

Effect  of  statute  of  limitations  as  to  payment  of  reward 
(J.  A.  G.) 

Enlistmemts,  discharged  from  first  and  held  to  second 
(J.  A.G.) 

Expense  of  returning  to  proper  station  (J.  A.  G.) 

Forfeiture  of  deposits  not  affected  bj^  restoration  (J.  A. 
G.) 

National  Guardsmen,  organization  mustered  out,  reward 
for  apprehension  (J.  A.  G.) 

Payment  of  reward,  militiamen  or  National  Guardsmen, 
in  ser\'ice  of  United  States  (J.  A.  G.) 

Kemoval  from  active  list  (J.  A.  G.) 

Reward  for  apprehending  while  seriing  in  Navy  or 
Marine  Corps  (J.  A.  G.) 

E-eward  for  apprehension,  additional  expense  (J.  A.  G.) 

Keward  for  apprehension,  claim  for  arresting  after  sur- 
render to  military  authorities  (J.  A.  G.) 

P.-eward  for  apprehension,  confined  in  prison,  informa- 
tion as  to  (J.  A.  G.) 

Reward  for  apprehension,  delivered  as  absent  without 
leave  but  tried  for  desertion  (J.  A.  G.) 

Reward  for  apprehension,  stoppage  of  pay  (J.  A.  G.) .. . 

Rewards  for,  when  delivered  to  military  authorities,  but 
not  accepted  (J.  A.  G.) 

Telegrams  concerning,  by  whom  payable  (Comp.) 

Transportation  of  remains  (J.  A.  G.) 

Desertion — 

See  also  Deserters. 

Charge  of.  removal  after  discharge  of  soldier  (J.  A.  G.). 

During  Civil  War,  charge  of,  when  may  be  removed 
(J.  A.  G.) ; 

Forfeiture  of  pay  and  allowances  accrued  under  prior 
enlistment  (J.  A.  G.) 

Forfeiture  of  right  to  gratuity  (J.  A.  G.) 

Intention  to  report  at  another  post,  no  defense  (J.  A.  G.) 

Noncommissioned  officer,  effect  on  position  (J.  A.  G.) .. 

Noncommissioned  officer,  reduction  to  ranks  (J.  A.  G.) . 

Resignation  of  officers  during  Civil  War,  join  Confeder- 
acy (J.  A.  G.) 

Restoration  of  civil  rights  by  pardon  (J.  A.  G.) 

Retirement  of  enlisted  men,  counting  time  spent  in 

confinement  for  (J.  A.  G.) 

Detached  Service — 

See  aho  Details. 

Battalion  adjutant,  commanding  company  (J.  A.  G.). 

Commanding  officer  of  supply  company  (J.  A.  G.) 

Compelling  officer  to  proceed  to  point  for  identifica- 
tion by  civilian  witnesses  (J.  A.  G.) 

Construction  of  law  limiting,  full  opinion  (J.  A.  G.).. 

Date  when  ]ienalty  clause  becomes  effective  (J.  A.  G.) . 

Definition  of  terms — 

"Actually  present  for  duty  "  (J.  A.  G.) 

"Company,  troop,  or  battery"  (J.  A.  G.) 

'_'  Detached  for  duty  of  any  kind  "  (J.  A.  G.) 

Detail  to  Bureau  of  Insular  Affairs  (J.  A.  G.) 

Duty  as  adjutant  of  brigade  by  captain  or  field  officer 
not  detailed  in  Adjutant  General's  Department 
(J.  A.G.; 


1!)14 

1!)15 

1913 

1912 
1S14 

1915 

1916 

1916 
1915 

1912 
1912 

1912 

1912 

1912 
1915 

1914 
1913 
1915 

1915 

1913 

1914 
1913 
1915 
1915 
1913 

1915 
1913 

1912 


1915 
1917 

1914 
1912 
1913 

1913 
1913 
1913 
1913 


1914 


Page. 


14 

30 

1 

20 
14 

39 

47 

28 
18 

20 
12 

12 

12 

12 
36 

33 

8 
18 

14 

4 

50 
18 
36 
21 
11 

9 
23 

20 


26 
15 

50 

22 

1 

1 

1 

1 

13 


33 


710 


INDEX. 


Bulletins. 


Detached  Service — -Contiiiued. 

Duty  as  adjutant,  National  Guard  Di^•ision  (J.  A.  G.). . 
Elia:ibility  of  officers  of  Porto  Eico  Regiment  for  (J. 

A.  G.) , 

Exercising  command  when  not  present  with  company, 

two-company  commands  (J.  A.  G.) 

Field  officer  performing  duty  as  commanding  officer 

and  in  other  ca])acities  in  connection  with  Coast 

Artillery  (J.  A.  G.) 

Garrison  duty,  in  command  of  detachment  (J.  A.  G.). . . 
Headquarters  company  or  troop,  command  of  (J.  A.  G.) . . 

Instruction  of  regimental  recruits  (J.  A.  G.) 

Instructors  at  joint  camps,   regulars,  and   Organized 

Militia  (J.  A.  G.) _. 

Laws,  not  amended  by  National  Defense  Act  (J.  A.  G.) . . 

Officer  above  grade  of  major  on  staff  duty  (J.  A.  G.) 

Officer  absent  with  leave  (J.  A.  G.) 

Officer  commanding  detachment  of  his  company  (J.  A.  G.) 
Officer  commanding  garrison  detachment  (J.  A.  G.). . . . 
Officer  commanding  machine-gun  platoon  (J.  A.  G.)... 

Officer  commanding  mine  planter  (J.  A.  G.) 

Officer  in  command  of  guard  (J.  A.  G.) 

Officer  not  qualified  for,  can  not  assume  duties  while 

on  leave  of  absence  (J.  A.  G.) 

Officer  on  duty  as  squadron  adjutant  (J.  A.  G.) 

Oflicer  serving  as  witness  in  civil  court  (J.  A.  G.) 

Officers,  newly  appointed  (J.  A.  G.) 

Officers  of  Army,  full  opinion  on  law  governing  (J. 

A.  G.) 

Penalty  for  wrongfully  ordering  or  permitting  (J.  A.  G.)  . 

Philippine  Constabulary  (J.  A.  G.) 

Philippine  Scouts,  duty  with  (J.  A.  G.) 

Promotion  of  officer  while  on  staff  duty  (J.  A.  G.) 

P,egimental  adjutants.  Field  Artillery  (J.  A.  G.)- 

Regimental  adjutants,  service  with  troops,  when  oper- 
ative (J.  A.  G.) 

SerA-ice  en  route  on  transport  (J.  A.  G.) 

Service  in  Ordnance  Department  (J.  A.  G.) 

Service  in  Philippine  Constabulary  (J.  A.  G.) 

Service  with  troops,  machine-gun  troops  (J.  A.  G.) 

Staff  departments  (J.  A .  G .) 

Staff  ride  exercises,  accompanied  by  troops  (J.  A.  G.). . 
Status  of  officer  when  statute  relating  to,  is  inoperative 

(J.  A.  G.) 

Status  while  traveling,   on  leave,  or  awaiting  orders 

(J.  A.G.).... 

Student  officer  at  foreign  military  school  (J.  A.  G.) 

Training  infantry  rifle  team,   not  duty  with  troops 

(J.  A.G.) 

Umpire  at  target  practice,  Coast  Artillery  Corps  (J. 

Wlien  examination  for,  may  be  taken  (J.  A.  G.) 

Detached  Officer's  List — 

Details  therefrom  (J.  A.  G.) 

Details — 

See  also  Detached  service. 

of  Clerks  and  employees,  diversion  of  appropriations  by 

(J.  A.  G.) 

Construction  of  law  limiting,  full  opinion  (J.  A.  G.) 

from  Detached  officers'  list" (J.  A.  G.) 

Officer  as  principal  assistant  to  Chief,  Bureau  of  Insular 

Affairs,  duration  of  (J.  A.  G.) 

Officers  of  Army,  fr.ll  opinion  as  to  law  governing  (J.  A. 

G.) 


Year. 

No. 

1917 

9 

1917 

18 

1914 

33 

1914 

39 

1915 

21 

1916 

39 

1913 

29 

1914 

39 

1916 

47 

1914 

25 

1913 

1 

1913 

4 

1915 

21 

1913 

4 

1913 

1 

1915 

32 

1913 

1 

1917 

3 

1913 

4 

1915 

21 

1912 

22 

1913 

31 

1914 

25 

1916 

47 

1915 

1 

1917 

3 

1916 

18 

1913 

38 

1913 

1 

1913 

27 

1915 

39 

1916 

18 

1916 

13 

1914 

33 

1914 

46 

1913 

1 

1915 

26 

1914 

39 

1913 

4 

1916 

57 

1914 

43 

1912 

22 

1916 

57 

1912 

20 

1912 

22 

Page. 


650 
678 
394 


409 

498 
615 
271 

408 
624 
378 
111 
144 
498 
142 
115 
514 

111 
640 
143 

498 

54 
292 
377 
625 
457 
641 

566 
319 
116 
249 
534 
561 
657 

393 

429 
111 

504 

409 
144 

634 


417 

54 

634 

29 

54 


INDEX. 


711 


Bulletins. 


Details — Continued. 

Officers  on  Alaska  railroad  construction  (J.  A.  G.) 

Officers,  Quartermaster  Corps,  act  of  Aug.  24,  1912  (J. 

A.G.) 

Officers  to  educational  institutions  (J.  A.  G.) 

to  Ordnance  Department,  how  made  (J.  A.  G.) 

to  Philippine  Constabulary,  detached  service  (J.  A.  G.) 

to  Quartermaster  Corps  (J.  A.  G.) 

in  Staff  departments,  detached  service  law  (J.  A.  G.)  . 

to  Staff  departments,  how  made  (J.  A.  G.) 

of  Staff  officer  as  officer  of  the  day  (J.  A.  G.) 

Disbursing  Officer — 
See  also  Accounts. 

Issuance  of  second  original  check,  original  lost  (Comp.) . 
Jurisdiction  of  the  Comptroller  over  accounts  of  (Comp.) 
Officers'  Reserve  Corps  members,  assignable  as  (J .A.G . ) 
Responsibility  for  payment  made  on  forged  signatures 

(Comp.) 

Disbursements — 

Manner  of  payments  to  foreign  creditors  (Comp.) 

Under  overruled  decisions  (Comp.) 

Discharge — 

See  also  Discharged  officers;  Discharged  soldiers. 

to  Accept  commission,  convenience  of    Government 

(J.  A.G.) 

Deduction  of  indebtedness  due  United  States  from 

travel,  pay  on  (Comp.) 

Department    commander    may    order,    under    fourth 

Article  of  War  (J.  A.  G.) 

Dishonorable.     See  Dishonorable  discharge. 

Dishonorable,  notice  of  (J.  A.  G.) 

Effect  of  unauthorized  (J.  A .  G.) 

Enlisted  men  arrested  and  confined  by  civil  authori- 
ties, pay  on  condonation  of  offense  and  (J.  A.  G.) 

Enlisted  men,  dependent  families  (J.  A.  G.) 

Enlisted  men,  dependent  foster  parent  (J.  A.  G.) 

Enlisted  men,  for  convenience  of  Government  (J.  A.G.) 
Enlisted  men.  National  Guard,  account  of  dependent 

family  (J.  A.  G.) 

Enlisted  men.  National  Guard,  after  President's  call 

(J.  A.G.) 

Enlisted  men,  National  Guard,  for  physical  disability 

(J.  A.  G.) 

Enlisted  men,  signing  by  staff  officer  (J.  A.  G.) 

Enlisted  men,  transportation  upon  (Comp.) 

Enlisted  mSen,  National  Guard,  unauthorized  (J.  A.G.).. 
Deserter,  from  first  and  held  to  second  enlistment  (J. 

A.G.) 

Officers,  National  Guard,  for  physical  disability  (J.  A. 

G.) 

Purchase  of,  continuous  service  (Comp.) 

Purchase  of,  effect  on  Army  reserve  enlistments  (J.  A. 

G.) 

Purchase  of,  enlisted  man,  one  year's  service  (J.  A.  G.). . 

Purchase  of,  furlough  to  Army  Reserve  (J.  A.  G.) 

Purchase  of,  while  on  furlough  (J.  A.  G.) 

by  Retiring  board,  action  of  President  on  report  of 

(J.  A.G.) 

Revocation  of  dishonorable,  insanity  (J.  A.  G.) 

Without  honor  (J.  A.  G.) 

Without  honor,  not  revocable  (J.  A.  G.) 


1914 


25 


375 


1912 

20 

45 

1913 

13 

176 

1913 

1 

116 

1913 

4 

144 

1914 

25 

377 

1913 

1 

128 

1916 

18 

561 

1913 

8 

156 

1915 

32 

514 

1915 

36 

523 

1917 

15 

669 

1917 

3 

615 

1917 

3 

616 

1913 

38 

321 

1913 

38 

322 

1916 

57 

635 

1912 

12 

20 

1912 

12 

4 

1915 

36 

518 

1917 

15 

660 

1912 

20 

28 

1916 

28 

593 

1912 

20 

36 

1917 

18 

674 

1916 

18 

576 

1916 

28 

595 

1916 

28 

595 

1914 

52 

450 

1915 

32 

516 

1917 

15 

660 

1912 

20 

38 

1916 

28 

595 

1912 

12 

17 

1913 

29 

272 

1915 

39 

534 

1916 

18 

572 

1914 

1 

325 

1912 

12 

3 

1915 

1 

458 

1913 

1 

116 

1913 

27 

249 

712 


INDEX. 


Bulletins. 


Discharged  Officers — 
See  also  Discharge. 

Travel  allowances  (J.  A.  G.) 

Discharged  Soldiers — 
See  also  Discharge. 
Admission  to  Soldiers'  Home  when  able  to  earn  li-\dng 

(J.  A.  G.) 

Charge  for  berth  reserved  for,  on  transportation  request 

(Ooinp.) 

Charges  against,  removal  (J.  A.  G.) 

Election  of  routes  of  travel  (J.  A.  G.) 

Excess  cost  of  transportation  by  longer  route  (J.  A.  G.). . 
Insane,  shipment  and  disposition  of  effects  of  (J.  A.  G.). 
Subsistence  when  traveling  by  longer  route  (J.  A.  G.). . . 

Transportation  from  place  of  discharge  (Comp.) 

Transportation  in  kind  furnished  but  not  used  (J.  A.  G.). 

Transportation  of  (Comp.) 

Transportation   to  point  selected   within   continental 

limits  of  United  States  (J.  A.  G.) 

Transportation  A'arj-ing  from  request  (Comp.) 

Travel  allowances  between  United  States  and  Alaska 

(Comp.) 

Travel  allowances  not  subject  to  deductions  (Comp.).. 

Travel  allov.-ances  over  longer  route  (Comp.) 

Travel  allowances,  sleeping-car  accommodations  (Comp.) 
Travel  allowances  when  enlisted  in  Philippines  ( Comp.) . 
Using   transportation    requests    as    part    pajineut    on 

through  trip  fare  (Comp.) 

Disciplinary  Companies — 

Quarters  for  officers  in  command  of  (J.  A.  G.) 

Discipline — 

iSfca/so  Courts-martial;  General  Prisoners;  Punishment; 

Sentences. 

Computation  of  tin^e  of  sentence  (J.  A.  G.) 

Confinement  of  military  prisioner  in  Canal  Zone  peni- 
tentiary (J.  A.  G.) 

Effect  of  approval  of  sentence  by  re\dewing  authority, 

a  portion  of  which  is  simultaneously  remitted  (J.  A.  G. ) 

Enlisted  man  awaiting  trial  (J.  A.  G.) 

Enlisted  men,  failure  to  produce  clothing  at  inspection . 

Article  of  War  (J.  A.G.) 

Failure  of  soldier  to  disclose  disease  (J.  A.  G.) 

Punishment  in  reducing  soldiers  from  first-class  privates 

(J.  A.  G.) 

Remission  of  punishment  as  to  lost  files  after  promotion 

(J.  A.  G.) 

Soldier  absent  without  leave,   cost   of   transportation 

(J.  A.G.) 

Discounts — 

on  Bills  for  gas  consumed  (Comp.) 

Dishonorable  Discharge — 
See  also  Discharge. 
Continuous-ser\-ice  pay  on  reenlistment  after  f (Comp.). . 

completed  enlistment  and  subsequent \(J.  A.  G.) . 

Designation  of  prisoners  under  suspended  sentence  of 

( J .  A .  G . ) 

Effect  of,  on  prior  unserA^ed  enlistment  (J.  A.  G.) 

Enlisted  men,  revocation  of,  insanity  (J.  A.  G.) 

Honorable  restoration  of  prisoners  to  duty  (J.  A.  G.).. . 

Notice  of  (J.  A.  G.) 

Pay  and  allowances  of  soldiers  sentenced  to,  during 

suspension  of  sentence  (Comp.) 


Year. 

No. 

1914 

20 

1914 

39 

1914 

46 

1915 

14 

1914 

5 

1914 

50 

1914 

50 

1913 

4 

1914 

43 

1915 

5 

1915 

32 

1914 

33 

1914 

43 

1913 

1 

1914 

14 

1913 

17 

1914 

5 

1913 

8 

1915 

1 

1915 

5 

1913 

38 

1912 

20 

1912 

12 

1913 

23 

1912 

20 

1913 

29 

1912 

12 

1913 

13 

1913 

29 

1913 

17 

1914 

33 

1914 

39 

1914 

46 

1916 

8 

1915 

1 

1914 

8 

1915 

36 

1914 

52 

Page. 


369 


413 

435 
479 
335 
444 
443 
151 
425 
468 
516 

400 
426 

136 
362 
204 
341 
169 

463 

467 


319 

36 

8 
227 

36 

273 

9 

179 
279 
202 


404 
412 

430 
545 
458 
340 
518 

454 


INDEX. 


713 


Bulletins. 


DisTTUCT  OF  Columbia — ■ 

Burial  expenses  of  indigent  ex-Union  soldiers  dving  in 

(J.  A.  G.) ■ 

Eight-hour  law  for  women  (.T._  A.  G.) 

Erection  of  buildings  in  public  parks  (J.  A.  G.) 

Militia,  clerks  and  employees  as  members  of,  leave  of 

absence  (J.  A.  G.) 

Militia  of,  residence  of  members  (J.  A.  G.) 

Number  of  ofhcers,  General  Staff  Corps,  to  be  on  duty 

in  (J.  A.  G.) 

Retirement  of  militia  officers  (J.  A.  G.) '. 

Service  in,  boards  recommending  details.  General  Staff 

Corps  (J.  A.  G.) •- 

Donations — 

Gift  of  flag  for  dredge  (J.  A.  G.) ^ 

Improvements  at  national  cemetery  (J.  A.  G.) 

Land.     See  Land. 

of  Personal  property.     -See  Personal  property. 
Dredgimg — 

Eight-holU-  law,  application  of  to  retaining  bulkheads 

supplied  by  contractor  (J.  A.  G.) 

Easements — 

Telegraph  line  on  abandoned  road  (J.  A.  G.) 

Educational  Institutions — 
See  also  Schools. 

Details  of  officers  of  Army  as  instructors  (J.  A.  G.) 

Members  of  Officers'  Reserve  Corps  not  eligible  for  de- 
tail to  (J.  A.  G.) 

Uniforms  purchased  from  War   Department,   cost  to 

students  (J.  A.  G.) 

Eight-hour  Law — 

Application  of,  to  informal  contracts  (J.  A.  G.) 

Application  to  contract  for  furnishing  ammunition  (At. 

Gen.) 

Application  to  contracts  for  Government  supplies  (At. 

Gen.) 

Application  to  horse  breakers  and  farm  hands  (J.  A.  G.). 

Application  to  renovation  of  blankets  (J.  A.  G.). 

Application    to    retaining    bulkheads    for    deposit    of 

dredged  material  (J.  A.  G.) 

Application  to  subcontractors  (At.  Gen.) 

Appropriations  made  before  passage  of  (At.  Gen.) 

Chauffeurs,  not  applicable  to  (J.  A.  G.) 

Claim  for  overtime  pay  under  (J.  A.  G.) 

Construction  of  barges  as  '-public  works"  (J.  A.  G.). . . . 
Construction    of    Government    dredge,    not    "public 

works"  (J.  A.  G.) 

Construction  of  spur  track  for  the  delivery  of  contract 

supplies  (J.  A.  G . ) 

Contractor  continuing  labor  on  other  contracts  after 

eight-hour  limit  (J.  A.  G.) 

Contracts  for  construction  of  vessels  for  United  States 

(J.  A.  G.) -. 

Contracts  for  wagons  for  Army,  Government  specifica- 
tions (J.  A.  G.) ;;■*■ 

Contracts  for  projectiles,  smokeless  powder,  etc.  (At. 

Gen.) -- 

Domestic  servants  not  subject  to  (J.  A.  G.) 

Dredging,  use  of  private  funds  (J.  A.  G.) _- 

Employment  of  laborers  and  mechanics  on  repairs  to 

Government  vessels  (At.  Gen.) 

Exceptions  to  requirements  (J.  A.  G.) 

Extraordinary  emergency  (J.  A.  G.).. 

Extraordinary  emergency  and  conditions  (J.  A.  G.) 


1915 

1 

456 

1014 

14 

357 

1914 

5 

334 

1912 

20 

32 

1913 

18 

217 

1916 

28 

594 

1914 

14 

357 

1916 

18 

573 

1913 

38 

319 

1914 

25 

379 

1914 
1913 

1913 

1916 

1915 

1913 

1912 

1912 
1914 
1913 

1914 
1912 
1913 
1916 
1917 
1914 

1915 

1914 

1913 

1913 

1913 

1913 
1913 
1913 

1912 
1913 
1913 
1913 


33 

29 

13 

39 

14 

8 

20 

20 
43 
31 

33 
12 
23 

8 
18 

5 

21 

25 

8 

1 

1 

1 
17 
18 

20 

1 

31 

18 


Page. 


395 

275 

176 

617 

480 

158 

51 

52 
418 
213 

395 
21 
245 
545 
674 
332 

499 

379 

158 

109 

117 

51 
194 
214 

51 

117 
292 
212 


714 


INDEX. 


Bulletins. 


Eight-hour  I^aw — Continued. 

Extraordinary  emergency,  mobilization  (J.  A.  G.) 

Extraordinary  emergency  within  meaning  of  (J.  A.  G.). 

Flying  machines,  contracts  for  purchase  (J.  A.  G.) 

Government  employees,  payment  for  overime  (J.  A.  G.) 

Laborers  employed  on  dredges  (At.  Gen.) 

Material  for  erection  of  public  buildings  (At.  Gen.) 

Purchase  of  supplies,  water  and  electric  light,  stevedor- 
ing (J.  A.  G.)  ': 

Stokers  on  Government  vessels  (J.  A.  G.) 

Telegraph  operators  (J.  A.  G.) 

Tools  and  appliances,  manufacture  of  (J.  A.  G.) 

Women  employees  of  War  Department,  telegraph  office 

(J.  A.  G.) 

Working  laborers  on  two  separate  contracts  (J.  A.  G.)... 
Employees.     See  Clerks  and  employees. 
Encampments  and  Maneuvers.     See  Militia. 
Engineer  Department — 

Purchases  made  by  another  bureau  or  department  from, 

adjustment  of  appropriations  for  (Comp.) 

Engineer  Detachment — 

Military  Academy,  distribution  of  profits  of  post  ex- 
change (J.  A.  G.) 

Military  Academy,  status  of  (J.  A.  G.) 

Engineer  School — 

Specific    and    general    appropriations,    application    to 

(J.  A.  G.) 

Engineers,  Corps  of — ■ 

Officers,  appointment  from  civil  life  (J.  A.  G.) 

Officers,  employment  on  civil  works  (At.  Gen.) 

Transfer  of  line  officers  to  (J.  A.  G.) 

Vacancies  in,  how  filled  (.1.  A.  G.) 

Enlisted  Men — 

See  also  Enlisted  men.  National  Guard;  Enlistment. 
Absence  due  to  misconduct,   making  good  time  lost 

(J.  A.  G.) 

■(J.  A.  G.).. 

(Comp.) 

(J.  A.  G.).. 

(J.  A.  G.)-. 

[(J.  A.  G.).. 

Absence  in  confinement,  forfeiture  of  pay  (Comp.) 

Absence  in  confinement,  making  good  time  lost  (J.  A.  G.) . 

Absence,  making  good  time  lost  (J.  A.  G.) 

Absence  on  31st  day  of  month,  deductions  for  (Comp.).. 
Absence  without  leave,  amendment  of  Army  Regula- 
tions as  to  rewards  for  soldiers  convicted  of  (J.  A.  G.). 
Absence  without  leave,  deductions  from  pay  (J.  A.  G.).. 
Absence  -without  leave,  detained  by  civil  authorities 

(J.  A.  G.) 

Absence  without  leave,  expense  of  returning  to  com- 
mand, voluntary  service  (J.  A.  G) 

Absence  without  leave,  making  good  time  lost  (J.  A.  G.). 

Active  list  of  Regular  Army,  service  in  Volunteer  forces 
or  militia  when  called  into  service  of  the  United 
S  tates  ( J .  A .  G . ) 

Appointment  as  cadets,  eligibility  (J.  A.  G.) 

Army  Reserve,  construction  of  law  creating,  full  opin- 
io n  (J .  A .  G .)...._...  _.  _...._ 

Army  Reserve,  eligibility  for  examination  for  commis- 
sion (J.  A.  G.) 

Army  Reserve,  employment  of,  in  the  civil  service 
(J.  A.  G.) 


Absence  due  to  misconduct,  stoppage  of  pay, 
etc.,  during. 


1913 
1912 
1917 
1914 
1913 
1913 

1913 
1913 
1913 
1914 

1914 
1913 


1914 


1912 
1912 


1914 

1914 
1913 
1917 
1913 


1914 
1913 
1913 
1914 
1911 
1914 
1914 
1914 
1916 
1913 

1915 
1913 

1912 

1914 
1912 
1913 


1914 
1917 

1912 

1915 

1914 


Page. 


18 
12 

3 
25 

1 
17 

18 
29 
29 
25 

14 
13 


46 


20 

20 


33 

20 
29 

18 
18 


39 

8 

29 

8 

33 

43 

50 

39 

1 

35 

1 

4 

20 

50 

20 

1 


39 
9 

22 

1 

33 


INDEX. 


715 


Bulletins. 


Enlisted  Men — Continued. 

Army  School  Detachment,  absence  due  to  misconduct, 
deduction  of  pay  (Comp.) 

Arrest  by  State  court,  civil  proceedin";  for  debt  (J.  A.  G.). 

Arrested  and  confined  by  civil  authorities,  condonation 
of  offense  and  discharge,  pay  (J.  A.  G.) 

Authority  of  retired  officers  assigned  to  active  duty  to 
command  (J.  A.  G.) 

Aviation  mechanician,  pay  and  allowance  on  furlough 
(J.  A.  G.) 

Brigade  headquarters,  employment  of  (J.  A.  G.) 

Certificate  of  merit,  time  of  making  recommendation 
for  (J.  A.  G.) 

Chief  musician,  reduction  to  ranks  (J.  A.  G.) 

Civil  employment  while  on  furlough  (J.  A.  G.) 

Civil  employment  while  on  furlough  preceding  retire- 
ment (J.  A.  G.) 

Clothing  allowance,  title  to  (J.  A.  G.) 

Continuous  service,  on  active  list  of  Regular  Army, 
service  in  Volunteer  forces  or  militia  when  called 
into  service  of  United  States  (J.  A.  G.) 

Continuous-service  pay.     See  Pay  of  enlisted  men. 

Courts-martial  sentence  to  forfeiture  of  pay,  when  be- 
gins to  run  ^Comp.) 

Deposits,  liability  for  debts  to  United  States  and  post 
exchange  (Comp.) 

Detail  of,  for  service  with  National  Guard  (J.  A.  G.) 

Detailed  as  corporal  in  recruiting  service  when  dis- 
charged ,  reenlistment  pay  ( Comp . ) 

Discharge  by  purchase,  furlough  to  Reserve  (J.  A.  G.). . 

Discharge,  dependent  family  (J.  A.  G) 

Discharge  for  convenience  of  Government  (J.  A.  G.).  .  . 

Discharge  for  convenience  of  Government,  acceptance 
of  commission  (J.  A.  G.) 

Discharge  on  account  of  dependent  foster  parent 
(J.  A.  G.) 

Discharges,  signing  of,  by  staff  officer  (J.  A.  G.) 

Discipline,  failure  to  produce  clothing  at  inspection 
(J.  A.  G.) 

Dishonorable  discharge,  revocation  of,  insanity  (J.  A.  G.) 

Dishonorably  discharged,  while  serving  prior  sentence, 
cumulative  sentences  (J.  A.  G.) 

Disposition  of  deposits  upon  discharge  (Comp.) 

Disposition  of  effects  of  deceased,  jurisdiction  (J.  A.  G.) 

Disposition  of  remains  of  deceased,  reward  for  recovery 
of  body  (J.  A.  G.) 

Eligibility  for  membership  in  Officers'  Reserve  Corps 
(J.  A.  G.) 

Employment  as  laborers  (Comp.) 

Employment  as  stenographic  reporters  (J.  A.  G.) 

Engaging  in  civil  employments  on  furlough  (J.  A.  G.). 

Engaging  in  commercial  business,  hiring  out  automo- 
biles (J.  A.  G.) 

Engaging  in  private  business  (J.  A.  G.) 

Enlistment  for  seven  years,  etc.,  construction  of  pro- 
vision, full  opinion  (J.  A.  G.) - 

Examination    for    commission,     credit    for    National 

Guard  service  (J.  A.  G.) .-•.--.-. 

Examinations  for  commissions,  eligibility  (J.  A.  G.) 

Expenses  of  civil  authorities  for  detention  of  (J.  A.  G.). 
Expenses  of  ofiicers  and,  with  their  mounts,  attending 
mounted  competition  (J.  A.  G.) 


1916 
1916 

1912 

1914 

1916 
1916 

1912 
1916 
1914 

1917 
1916 


1914 


1915 

1916 
1916 

1912 
1916 
1916 
1917 

1916 

1912 
1914 

1912 
1915 

1915 
1913 
1912 

1914 

1917 
1916 
1913 
1917 

1912 
1915 

1912 

1917 
1916 
1917 

1914 


Page. 


47 
8 

20 

52 

18 
34 

20 
18 
33 

3 
57 

39 


13 

28 

20 

18 
28 
18 

57 

20 
52 

20 
1 

36 
35 
20 

39 

9 

8 

23 

3 

12 
5 

22 

18 
47 
15 

50 


630 
549 

37 

452 

578 
606 

31 
569 
396 

612 
634 

410 

477 

559 
593 

49 
572 
593 
674 

635 

36 
450 

36 

458 

518 

311 

37 

413 

653 
550 
233 
642 

10 

467 

76 

675 
626 
659 

441 


716 


INDEX. 


Bulletins. 


Enlisted  Men — Continued. 

Extradition  to  another  State  for  prosecution  by  civil 
authorities  (J.  A.  G.) 

Extra-duty  pay  as  telegraph  operator  (Ct.  Cls.) 

Extra  duty,  service  at  Military  Academy  (Comp.) 

Failure  to  disclose  disease  (J.  A.  G.) 

Farrier,  abolishment  of  grade  (J.  A.  G.) 

Furlough,  civil  employment  of,  while  on  (J.  A.  G.) 

Furlough  for  retirement,  civil  employment  of  (J.  A.  G.). 

Furlough,  ordered  to  duty,  transportation  (Comp.) 

Furlough,  returning  from,  cost  of  transportation  (J.  A.  G.) . 

Furlough  to  Reserve,  indebted  to  United  States 
(J.  A.  G.) 

Furlough  to  rvesei*ve,  transportation  allowances  (Comp.). 

Furlough  without  pay  (J.  A.  G. ) 

Gratuity.     See  Gratuity. 

Heat  and  light,  allowance  in  land  while  on  temporary 
duty  in  field  (J.  A.  G.) 

Injured  while  cleaning  arms,  line  of  duty  (J.  A.  G.) 

Lance  corporal,  appointment  (J.  A.  G. ) 

Liable  for  indebtedness  to  L^nited  States,  contracted 
during  preceding  enlistment  (J.  A.  G.) 

Loss  of  civilian  clothing  by,  reimbursement  (J.  A.  G.). . 

Making  good  time  lost  by  absence  without  leave  (J. 
A.  G.) 

Marine  Corps,  jurLsdiction  of  naval  covu't-martial  for 
offense  committed  while  detached  serving  with  Army 
(Fed.  Ct.) _ 

Marine  Corps,  tried  while  serving  with  Army,  allow- 
ance on  discharge  (J.  A.  G.) 

Medical  Department,  rank  of  sergeants,  first  class  (J. 
A.  G.)..... 

Noncommissioned  officers,  detail  for  duty  with  Na- 
tional Guard,  number  authorized  (J.  A.  G.) 

Noncommissioned  officers  on  temporary  duty  not  en- 
titled to  fuel  allowance  at  permanent  station  (J.  A.  G.) . 

Pay.     See  Pay  of  enlisted  men. 

Pay  during  absence.     See  this  title,  Absence. 

Period  of  enlistment  fixed  at  seven  years,  etc.,  con- 
struction of,  full  opinion  (J.  A.  G.) 

Post  exchange,  responsibility  for  money  collected  at 
pay  table  as  due  to  (J.  A.  G.) 

Pov/er  of  State  to  impiison,  nonpayment  of  poll  tax 
(Fed.  Ct.) '. 

Probation  of  garrison  prisoners,  period  of  duty  under 
enhstment  (J.  A.  G.) 

Promotion,  grade  second  lieutenant  (J.  A.  G.) 

Promotion  in  Quartermaster  Corps,  subject  to,  full 
opinion  (.T.  A .  G . ) 

Purchase  of  discharge,  one  year's  service  (J.  A.  G.) 


I'lu-chase  of  discharge  while  on  furlough  (J.  A.  G.) 

Pm'chase  of  envelopes  for  sale  to  officers  and  (Comp.) . . . 

Quartermaster  Corps,  substitution  for  civilians,  full 
opinion  (J.  A.  G.) 

Quartermaster  Corps,  to  take  place  of  civilian  employ- 
ees (J.  A.  Ct.) 

Quarters,  heat  and  light,  allowance  while  on  furlough 
or  temporary  duty  (Comp. ) 

Quarters,  not  public,  occupied  by,  while  on  temporary 
duty,  heat  and  light  for  (J.  A.  G. ) 

Quarters,  on  temporary  duty,  commutation  of  (Comp.). . 

Rations,  commutation  of  (J.  A.  G.) 

Reduction  of  grades  under  national-defense  act  (Comp.). 


1915 
1914 
1912 
1913 
1916 
1914 
1917 
1915 
1914 

1916 
1915 
1916 


1915 
1915 
1917 

1916 
1916 

1912 


1915 
1915 
1917 
1917 
1915 

1912 

1912 

1916 

1915 
1916 

1912 
1915 
1914 
1914 

1912 

1912 

1915 

1914 
1916 
1916 
1916 


5 
1 
12 
29 
34 
33 
3 
30 
33 

18 
36 

18 


36 
9 
9 

18 
13 

20 


36 

30 

15 

3 

5 

22 

12 

1 

1 
13 

22 

39 

1 

33 

22 

20 

30 

39 

47 

8 

28 


Page. 


466 
330 
18 
273 
608 
396 
642 
512 
396 

569 
522 

572 


520 
473 
651 

573 
557 

28 


525 
509 
662 
642 
467 

76 

14 

541 

460 
557 

91 
534 
325 
405 

93 

46 

512 

411 
631 
546 
603 


INDEX. 


717 


Bulletins. 


Enlisted  Men- — Continued. 

Reenlistment  after  four  years'  service  (J.  A.  G.) 

Reenlistnient  after  four  years'  service  and  passing  to 

Reserve  (J.  A.  G.) 

ReenUstment    pay,    computation    of    extra-duty    pay 

(Comp.) 

Repairs  to  property  used  by  Government  owned  by 

officers  and  (J.  A.  G.) 

Retired.     See  Retired  enlisted  men. 

Retired  pay  status  on  enlistment  in  National  Guard 

(Comp.) 

Retirement,  commissioned  service  counted  for  purpose 

of  ( J.  A.  G .) - 

Retirement,  counting  time  spent  in  confinement  for 

desertion  (J.  A.  G.) 

Retirement,  Philippine  service  (J.  A.  G.) 

Returning  from  furlough,  cost  of  transportation  (J.  A.  G.) 

Reward  for  recovery  of  bodies  of  deceased  (J.  A.  G.) 

Sergeants,  limited  warrant,  appointment  of  (J.  A.  G.). . 

Sleeping-car  accommodations  for  (J.  A.  G.) 

Stoppage  of  pay,  absence  during  test  as  to  nature  of 

disease  (J.  A.  G.) 

Stoppage  of  pay  to  reimburse  the  United  States  (J.  A.  G.) 
Surrendering    to    civil    authorities    under    fifty-ninth 

article  of  war  (J.  A.  G.) 

Transportation  from  place  of  discharge  (Comp.) 

Transportation  from  place  of  discharge  varying  from 

request  (Comp.) 

Transportation  on  discharge  (Comp.) 

[(J.A.G.) 

Travel  allowances  on  discharge. . <  (Comp.) 

[(Comp.) 

Travel  allowances  on  discharge,  transportation  varying 

from  request  (Comp.) 

Travel  pay  on  discharge,  deduction  of  indebtedness  due 

United  States  (Comp.) 

Travel  without  troops,    Pullman-car  accommodations 

(J.  A.  G.) 

Enlisted  Men,  National  Guard — 

Age  qualification  for  enlistment  ( J.  A.  G.) 

Aviation  service,  increase  pay  for  (J.  A.  G.) 

Clothing  issued  to,  discharged  for  disability  (J.  A.  G.). . 
Discharge  by  State  authorities  after  President's  call 

(J.A.G.) 

Discharged  on  account  dependent  families,  effect  of 

(J.  A.  G.) - 

Discharge  of,  for  physical  disability  (J.  A.  G.) 

Discharge,  term  of  enlistment  (J.  A.  G.) 

Eligibility  for  membership  in  Officers'  Reserve  Corps 

(J.A.G.) ' 

EnliStriient,     disqualification,    conviction    of    felony 

(J.  A.  G.) 

Federal  oath,  effect  of  taking  (J.  A.  G.). 

Furlough  of,  to  reserve, restoration  to  active  list  (J.  A.  G.) , 

Furlough  to  reserve  (J.  A.  G.) • 

Medical  treatment  in  private  hospital,  cost  of  (Comp.). 
Medical  treatment  in  private  hosi^ital  at  time  of  muster 

out  (Comp.) 

Passing  of  to  National  Guard  Reserve  while  in  Federal 

service  (J.A.G.) ^ 

Passing  to  reserve,  restoration  to  active  duty  (J.  A.  G.). . . 
Pay  and  allowances,  in  United  States  service  (Comp.). . 


Year. 

No. 

Page. 

1916 

8 

546 

1914 

43 

421 

1912 

12 

20 

1914 

50 

444 

1917 

15 

668 

1916 

39 

615 

1912 
1913 
1914 
1914 
1917 
/  1912 
\  1913 

20 
4 

33 

39 
9 

20 
8 

47 
149 
396 
413 
651 

30 
164 

1917 
1915 

15 
1 

658 
461 

1912 
1914 

12 

43 

4 

425 

1914 
1915 
1913 
1914 
1916 

43 
32 
1 
43 
18 

426 
516 
131 
425 
586 

1914 

43 

426 

1912 

12 

20 

1915 

36 

519 

1916 
1916 
1916 

47 
34 
57 

627 
610 
634 

1916 

28 

595 

1916 
1916 
1917 

34 

28 

9 

609 
65i 

1917 

9 

653 

1916 
1916 
1917 
1916 
1917 

39 
47 

3 
47 

3 

616 

627 

628 

643 

1917 

18 

680 

1916 
1916 
1916 

28 
47 
34 

598 

623 
613 

718 


INDEX. 


Bulletins. 


Enlisted  Men,  National  Guard — Continued. 

Qualifying  as  gunner,  additional  pay  (Comp.) 

Recruits,  pay  of  between  enlistment  and  date  of  muster 
in  or  rejection  (Comp. ) 

Transfer  of,  by  State  authority  after  call  to  Federal 
service  (J.  A.  G.) 

Unauthorized  discharge  of  ( J.  A.  G . ) 

Uniform,  retention  of  after  muster  out  (J.  A.  G.) 

Enlisted  Reserve  Corps — 

Pay  of  ci"sdlian  employee  while  receiving  training  in 

(J.  A.  G.) 

Enlistment — 

See  also  Enlisted  men;  Enlisted  men.  National  Guard ; 
Fraudulent  enlistment. 

Antedating,  continuous-service  pay  (J.  A.  G.) 

Completion  of,  on  restoration,  time  awaiting  trial  and 
result  not  counted  toward  (J.  A.  G.) 

Continuous-service,  discharge  for  convenience  of 
Government  (J.  A.  G.) 

Deserter,  discharged  from  first  and  held  to  second 
(J.  A.G.)-. 

Disqualification,  conviction  of  felony,  National  Guards- 
men (J.  A.  G.) 

Eligibility,  applicant  committed  for  truancy  (J.  A.G.) 

Forfeiture  by  desertion  of  pay  and  allowances  accrued 
under  prior  (J.  A.  G.) 

Indian  Scouts,  application  of  regular  enlistment  con- 
tract to  (J.  A.  G.) 

Limits  of  age  for,  sec.  27,  national-defense  act  (J.  A.  G.) 

Making  up  lost  time  (J.  A.  G.) 

Marine  Corps,  when  it  becomes  effective  (Comp.) 

Members  of  Army  Reserve  in  Organized  Militia,  em- 
ployment as  stablemen  (J.  A.  G.) 

Minor,  appointment  of  guardian  to  consent  to  (J.  A.  G.) 

Minor,  without  consent,  ratification  of  (Fed.  Ct.) 

National  Guard,  age  qualification  (J.  A.  G.) 

in  National  Guard,  minors  under  18,  not  eligible 
(J.  A.G.) 

in  National  Guard  under  State  law,  status  while  in 
Federal  Ber\dce  (J.  A.  G.) 

Probation  of  garrison  prisoners,  period  of  duty  under 

(J.  A.G.) : 

Qualification  of  Indians  (J.  A.  G.) 

Reenlistment  after  four  years'  8er^dce  (J.  A.  G.) 

Reenlistment  after  four  years'  ser\dce  and  passing  to 
Army  Reserve  (J.  A.  G.) 

Pv,eenUstment  pay,  computation  of  (Comp.) 

Reenlistment  pay  for  soldiers  detailed  as  corporals  in 

recruiting  service  when  discharged  (Comp.) 

Enrollment — 

Determining  date  when  soldier  in  Civil  War  enrolled 

(J.  A.G.) 

Envelopes — 

Penalty,  transmission  of  library  books  (J.  A.  G.) 

Penalty,  use  by  post  laundries  (J.  A.  G.) 

Penalty,  use  in  connection  with  expenditure  of  com- 
pany fund  (J.  A.  G.) 

Penalty,  use  of  (J.  A.  G.) 

Purchase  of,  for  sale  to  officers  and  enlisted  men  (Comp.) 

Use  by  contractors,  forwarcLing  supplies  (J.  A.  G.) 

European  War — 

iSee  also  Contracts. 

Relief  of  contractors  for  supplies  on  account  /(J.  A.G.).. 
of  increased  prices  due  to \(AtGen.). . 


Year. 

No; 

1916 

28 

1916 

47 

1916 
1917 
1917 

47 

15 

3 

1917 

18 

1915 

1 

1917 

3 

1913 

35 

1912 

20 

1916 
1915 

39 
32 

1914 

50 

1915 
1916 
1913 
1912 

9 
18 

1 
12 

1916 
1914 
1913 
1916 

8 
46 
17 
47 

1916 

28 

1916 

18 

1915 
1916 
1916 

1 

47 

8 

1914 
1912 

43 
12 

1912 

20 

1913 

1 

1914 
1912 

1 
20 

1916 
1914 
1914 
1915 

8 

1 

33 

18 

1914 
1915 

46 
5 

Page. 


604 

632 

626 
660 
944 

675 

453 

640 

306 

38 

616 
515 

410 

472 

566 

118 

18 

544 
429 


627 
597 
576 

469 

207 
546 

421 
20 

49 

118 

326 
43 

547 
326 
405 
491 


431 

470 


INDEX. 


719 


Bulletins. 


Year. 


No. 


Page. 


Evidence — 

See  also  Witness. 

Compelling  officer  to  proceed  to  point  for  identification 
by  civilian  mtnesses  (J.  A.  G.) 

Corroboration  in  case  of  confession  (Fed.  Ct.) 

Credibility  of  defendant  as  witness  (St.  Ct.) 

Hearsay,  not  admissible  because  made  to  officer  in  an 

investigation  (J.  A.  G.) 

Examinations — 

Dental  Corps  officers  for  promotion,  retirement  on  fail- 
ure as  to  physical  (J.  A.  G.) 

Field  officers,  promotion,  sec.  24,  national  defense  act 
(J.A.G.) - 

of  Officers  for  promotion  (J.  A.  G.) 

fur  Promotion,  eligibility  of  enlisted  men  of  Army  Re- 
serve (J._A.  G.) 

for  Promotion,  failure  to  pass,  exemptions  on  reexami- 
nation (J.  A.  G.) 

for  Promotion,  officer's  general  efficiency,  how  deter- 
mined (J.  A.  G.) 

Personal,  transfer  of  officers  (J.  A.  G.) 

Veterinarians,  scope  of  (J.  A.  G.) 

Examining  Boards — 

Appointment  on,  of  members  of  Officers'  Reserve  Corps 
(J.  A.  G.) 

Composition  of  first,  for  veterinarians  (J.  A.  G.) 

Exchange — • 

Payment  of  salaries  of  officers  abroad,  cost  of  (Comp.). . 
Exchange  Council — 

Shortage  in  accounts  of  exchange,  responsibility  for 

(J.A.G.) 

Exchange  Officer — 

Shortage  in  accounts  of  exchange,  responsibility  for 

(J.A.G.) 

Executive  Departments — 

Cancellation  of  bonds  on  acceptance  of  new  (J.  A.  G.). 

Chief  Clerks  may  designate  clerks  to  administer  oaths 
(J.A.G.) - 

Disposition  of  useless  official  records  (J.  A.  G.) 

Employees.     See  Clerks  and  employees. 

Expenses  of  distribution  of  publications  by  (J.  A.  G.). 
Exemptions — ■ 

from  Service  in  National  Guard,  waiver  of  (J.  A.  G.). . 

ExHIiUTIONS — • 

Exhibiting  Government   horses   at   horse   shows   and 

(J.A.G.) 

Ex-Officers — 

Recommissioning  in  Army  (J.  A.  G.) 

Expenses — ■ 

Military  attache  abroad,  pay  of  orderly  and  for  tips 

(Comp.) 

Military  attaches  abroad,  traveling  (Comp.) 

Officers  and  enlisted  men,  with  their  mounts  attending 

mounted  competition  (J.  A.  G.) ._ 

of  Officers  and  guard  in  producing  prisoner  in  response 

to  writ  of  habeas  corpus  (J.  A.  G.) 

of  Returning  soldiers  to  their  command,  absent  without 

leave  (J.A.G.) 

Transportation  of  Army  officers  entertaining  foreign 

officials  (Comp.) 

Traveling.     See  Traveling  expenses. 

Treatment  of  civilians  in  Government  hospitals  (J. 

A.G.).. 


1914 
1917 
1914 

1917 


1917 

1916 
1913 

1915 

1915 

1916 
1917 
1916 


1916 
1916 

1915 


1915 

1915 

1917 

1912 
1916 

1912 

1916 

1914 
1917 

1914 
1914 

1914 

1914 

1914 

1914 

1915 


50 
18 
20 

18 


18 

18 
4 

1 

32 

28 
18 
28 


57 
18 


9 
15 

20 

8 

20 

28 

50 

15 

43 
43 

50 

52 

50 

43 


441 
681 
374 

682 


677 

563 
146 

456 

515 

594 
677 
599 


637 

582 

477 


474 

474 

059 

42 
548 

44 

598 

441 
661 

424 

424 

441 
451 
446 
424 

404 


720 


INDEX. 


Bulletins. 


Extra  Compensation — 

Contract,  construction  of,  on  claim  for  (J.  A.  G.) 

Extradition — 

Transfer  of  enlisted  man  to  another  State  for  prosecu- 
tion by  civil  authorities  (J.  A.  G.) 

Extra  Duty — 

Enlisted  men  in  Quartermaster  Corps  (J.  A.  G.) 

Pay.    See  Pay  of  enlisted  men. 
Extraordinary  Emergency — 
See  also  Eight-hour  law. 
Meaning  of,  which  excepts  employees  from  eight-hour 

law  (J.  A.  G.) 

Extras — 

Not  agreed  to  in  writing,  claim  of  contractor  for  (J.  A.  G. ) 
Extra  Work 

('ontracts,  cost  of  work  (Ct.  Cls.) 

Due  to  faulty  design,  claim  for  (J.  A.  G.) 

Farm  Hands — 

Application  of  eight-hour  law  ( J .  A .  G . ) 

Farrier — 

Abolishment  of  grade  of  (J.  A.  G.) 

Fees  and  Licenses — 

-See  a?so  Chauffeurs;  Government  Agencies;  Taxation. 
Imposed  by  States  for  operation  of  Government  auto- 
mobiles (J.  A.  G.) 

Procurement  of  local  licenses  by  chauffeurs  for  opera- 
tion of  motor  vehicles 

Field  Clerks — 

Allowances,  date  of  commencement  (Comp.) 

Employment  of  as  courts-martial  reporter  (J.  A.  G.).. 

Heat  and  light  allowances  (J.  A.  G.) 

Field  Officers — 

See  also  Officers,  Army. 

Duty  as  adjutant  of  brigade  when  not  detailed  in  Ad- 
jutant   General's     Department,     detached     service 

(J.  A.  G.) 

Examination  for  promotion,  sec.  24,  national  defense 

act  (J.  A.  G.) 

Performing  duty  as  commanding  officer  and  in  other 
capacities  in  connection  with  Coast  Artillery  (J.  A.  G.) . 
Files  Lost.     See  Discipline. 
Findings.     See  Courts-martial. 
Fire — 

See  also  Contracts. 

Damage  by,  to  leased  buildings,  repairs  (J.  A.  G.) 

Loss    by,    responsibility    before    acceptance    of    work 

(J.  a:g.) 

Fishing  Nets — 

Navigable  water,  an  obstruction  to  navigation  (J.  A.  G.).. 
Floods — 

Militia,  accounting  for  tent  equipage  loaned  by  gov- 
ernor for  relief  of  sufferers  from  (J.  A.  G.) 

Transportation  on  Government  bill  of  lading,  loss  by 

unprecedented  (Cl.  Cls.) 

Voluntary  transportation,  relief  of  sufferers  (J.  A.  G.).. 
Florida — 

Discriminating  against  Army  uniform,  etc.,  prohibited. . 
Forage — 

Allowance  for  to  retii-ed  officers  on  active  duty  (J.  A.  G.).. 
Allowance  of,  to  battalion  adjutant  performing  duties 

of  company  commander  (J.  A.  G.) 

for  Extra  horses  (J.  A.  G.) 

Issue  for  horses  used  but  not  owned  by  military  attaches 
as  mounts  (Comp.) ' 


Year. 

No. 

1912 

12 

1915 

5 

1913 

4 

1912 

12 

1915 

1 

1912 
1917 

12 
18 

1914 

43 

1916 

34 

1914 

52 

1917 

18 

1917 
1917 
1917 

15 
9 

15 

1914 

33 

1916 

18 

1914 

39 

1914 

20 

1913 

35 

1914 

33 

1912 

12 

1912 
1913 

12 
18 

1917 

18 

1915 

26 

1915 
1913 

26 

1 

1912 

20 

Page. 


6 

466 
145 

9 

457 

24 
673 

418 

608 

453 

671 

668 
648 
661 


394 
563 
409 

365 
304 
398 

12 

26 
219 

684 

506 

504 
119 

49 


INDEX. 


721 


Bulletins. 


Forage— Continued. 

Mounts   for   military    attaches   abroad,    payments   for 

(Comp.) ." 

Mounts  not  complying  with  regulations  (Comp.) 

Mounts  not  ownaed  by  officers  (Comp.) 

Not  available  for  extra  mounts  (J.  A.  G.) 

Officer  on  leave  of  absence .  .<>  j ^T  p  \ 

Foreign  Cables — 

Permission  from  President  to  land  in  navigable  waters 

of  United  States  (J.  A.  G.) 

Foreign  Country — 

Use  of  militia  in.     See  Militia. 
Foreign  Government — 

Service  for,  performed  by  employees  of  U.  S.  Govern- 
ment, compensation  (J.  A.  G.) 

Foreign  Officials — 

Transportation  of  Army  officer  engaged  in  entertaining 

(Comp. ) 

Foreign  Service — 

Details  to  Philippine  Constabulary  (Comp.) 

Limitation  of,  Philippines  and  Canal  Zone  (J.  A.  G.). . 

Pay.     See  Pay  of  officers:  Pay  of  enlisted  men. 

Pay  clerks.     See  Pay  clerks. 

Physical  presence  in  Untied  States  (Comp.) 

Tour  of  duty,  request  of  extension  (J.  A.  G.) 

Forfeitures — 

Absence  from  active  duty  on  account  of  confinement 
(Comp.) 

Courts-martial  sentences  to,  when  begin  to  run  (Comp.). 

of  Deposits  by  desertion,  effect  of  restoration  (J.  A.  G.). 

Desertion,  pay,  and  allowances  accrued  under  prior 
enlistment  (J.  A.  G.) 

Pay  of  enlisted  men,  items  affected  by  (Comp.) 

for  Wrongful  detached  service  (J.  A.  G.) 

Forgery — 

Responsibility  of  disbursing  officers  for  payment  made 

upon  (Comp.) 

Fort  Bayard,  N.  Mex. — 

Civil-service    employees,    military    jurisdiction    over 

(J.  A.  G.) 

Fortifications — 

Purchases  of  material  abroad  (J.  A.  G.) 

Fraudulent  Enlistment — 

Minor,  without  consent  of  parents  or  guardian  (Fed.  Ct.) 
Freight — 

Basis  of  charges,  shrinkage  of  weight  en  route  (Comp.). 
Fuel — 

See  also  Heat  and  light. 

Allowances  of  noncommissioned  officers  on  temporary 
duty  not  entitled  to,  at  permanent  station  (J.  A.  G.). 

Allowance  to  officers,  use  by  families  of  (Comp.) 

Issue  in  kind  to  civilian  employees  of  Quartermaster  and 
Medical  Corps  (J.  A.  G.) 

Sale  of,  to  civilian,  postmistress  at  Army  post  (J.  A.  G.). 
Funeral  Expenses — 

Disposition  of  remains  of  Army  niu'ses  dying  in  ser\dce 

(J.  A.  G.) 

Furloughs — 

Enlisted  men  on.     See  Enlisted  men. 
Garrison  Prisoners — 

on  Probation,  period  of  duty  under  enlistment  (J.  A.  G.). 

93668°— 17 46 


1914 
1914 
1913 
1913 
1913 
1913 


1914 


1913 


1914 

1913 
1915 


19 13 

1910 


1914 
1915 
1915 

1914 
1915 
1913 


1917 

1912 
1913 
1915 
1915 


1915 
1912 

1914 
1914 


1914 


1915 


Page. 


33 
5 

13 

13 
4 

23 


39 


43 

23 
18 


38 
8 


50 

9 

39 

50 
36 
31 


20 
35 
18 
36 


5 

12 

43 
33 


50 


404 
337 
185 
181 
151 
228 


412 


124 


424 

238 
489 


323 

546 


446 
477 
533 

440 
524 
292 


646 

40 
307 
494 
524 


467 
19 

418 
400 


442 


460 


722 


INDEX. 


Bulletins. 


Gasoline — 

Furnishing   for   officers'   private   automobile   used   in 

Government  service,  not  authorized  (J.  A.  G.) 

General  Prisoners — 

See  also  Courts-martial ;  Discipline;  Military  Prisoners. 

Burial  expenses  (J.  A.  G.) 

Enlisted  men  of  Marine  Corps  serving  with  Army,  trans- 
portation and  allowances  (J.  A.  G.) 

Restoration  to  duty  (J.  A.  G.) 

Transportation    allowance    on    discharge,    continental 

limits  of  United  States  (J.  A.  G.) 

Transportation  on  discharge  (J.  A.  G.) 

General  Staff  Corps — 

Additional  members  of,  full  opinion  (J.  A.  G.) 

Boards  for  recommending  details  to,  service  in  District 

of  Columbia  (J.  A.  G.) 

Composition  of  (J.  A.  G.) 

Increases  under  national  defense  act  (J.  A.  G.) 

Officers,  number  authorized  to  be  on  duty  in  District 

of  Columbia  (J.  A.  G.^ 

General  Supply  Committee — ■ 

Army  supplies  for  use  in  District  of  Columbia  (At.  Gen.) 

Purchase  of  screws  by  Signal  Corps  (Comp.) 

Purchases  for  Armv  service  in  District  of /(Comp.).. 

Colimibia \ t(J- A.  G.). 

Supplies  for  office  of  Chief  of  Staff  (Comp.) 

Gifts.     See  Donations. 
Gold  Coi.m — 

Loss  by  abrasion  in  shipment  (Comp.) 

Government  Agencies — 

/See  aZso  Chauffeurs;  Fees  and  Licenses;  Post  exchanges; 

Taxation. 
Company  barber  shops,  billiard  and  pool  tables,  whether 

constitute  (J.  A.  G.) 

Inspection  of  Government  horses  at  State  lines  (Comp.) 
Leasing  portions  of  military  reservations  for  benefit  of 

(J.  A.  G.) 

Post  exchange  officer  liable  for  shortage  in  accounts  (Ct. 

Cls.) 

Post  exchanges,  payment  of  internal-revenue  tax  (J.  A. 

G.) : .---,-- 

Post  exchanges,  sales  of  cosmetics  and  perfumeries,  in- 
ternal-revenue stamps  (J.  A.  G.) 

Post  exchanges,  sales  of  liquors  at  (J.  A.  G.) 

Settlement  for  supplies  purchased  for  United  States  (J. 
AG.) 

Stoppage  of  soldiers'  pay  to  reimburse  post  exchange 
(Comp.) 

Taxation  by  States,  licenses  and  fees  for  operation  of 
automolnles  (J.  A.  G.) 

Taxation  on  military  reservations,  automobiles  ( J.  A.  G.) . 
Government  Bill  of  Lading — 

Transportation,  loss  by  unprecedented  floods  (Ct.  Cls.) . , 
Government  Employees — 

See  also  Clerks  and  employees. 

Eight-hour  law  applicable  to,  extraordinary  emergency 
(J.  A.  G.) 

Torts  of.  Government  not  liable  (Comp.) 

Government  Hospital  for  Insane — • 

Admission  of  clerks  and  employees  to,  after  discharge 
(J.  A.G.) 

Admission  of  discharged  soldier  to,  legal  residence  (J. 
A.G.) 

Admission  of  widow  of  Army  officer  to  (J.  A.  G.) 


Year. 

No. 

1915 

36 

1913 

18 

1915 
1914 

30 

8 

1916 
1914 

18 
5 

1912 

22 

1916 
1913 
1916 

18 
1 

18 

1916 

28 

1913 
1913 
1913 
1913 
1913 

17 
17 
23 

27 
27 

1913 

1 

1912 
1915 

20 
5 

1913 

35 

1913 

8 

1915 

1 

1915 
1913 

1 

18 

1913 

23 

1913 

8 

1914 
1912 

52 
20 

1912 

12 

1912 
1916 

12 

28 

1912 

20 

1912 
1912 

20 
20 

Page. 


INDEX. 


723 


Bulletins. 


Government  Property — 

Philippine  Islands,  exemption  from  customs  stamp  tax 

(At.  Gen.) 

Government  Service — 

Credit  assistant  veterinarian  with  (J.  A.  G.) 

Government  Supplies — 

Application  of  eight-hour  law  to  contracts  for  (At.  Gen.) , 
Government  Transportation  Requests.     See  Transjwr- 

tation  requests. 
Government  Vessels — 

Eight-hour  law,  employment  of  laborers,  etc.,  in  mak- 
ing repairs  to  (At.  Gen.) 

Gratuity — 

See  also  Beneficiary. 

Beneficiary,  effect  of  will  (Comp.) 

Carelessness  or  accident  not  misconduct  (J.  A.  G.) .. ... 


Designation  of  beneficiary  (Comp.) 


Year. 


No. 


Page. 


Enlisted  men,  death  of  beneficiary  before  receiving 
(Comp.) 

Forfeited  by  desertion  ( J.  A.  G .) 

Laws  applicable  to  National  Guard  in  service  of  United 
States  (Comp.) .-  -  ■ 

Not  payable  on  death  of  soldier,  what  constitutes  mis- 
conduct (J.  A.  G.) 

Payable  on  death  of  soldier,  what  constitutes  miscon- 
duct (J.  A.  G.) 

Pay  for  mounts,  officer  in  aviation  service  (Comp.) 

Statute  not  applicable  to  Nurse  Corps  (Comp.) 

Guaranties — 

Disposition  of  certified  check  received  as  (J.  A.  G.) ... . 
Guarantors — 

See  also  Contractors;  Contracts. 

Failure  to  accept  bid  within  time  limit,  liability  of 
(J.  A.G.) 

Liability  on  failure  of  successful  bidder  to  enter  into 

contract  (J.  A.  G.) 

Guardian  and  Ward —  ,t   ».   r^  \ 

Appointment,  consent  to  enlistment  of  minor(J.  A.G.), 

Gunners — 

Additional  pay  for  qualifying  as,  National  Guardsmen 

(Comp.) 

Additional  pay,  National  Guardsmen  quahfjang  as 
(J.  A.  G.) -  -  - 

Pay  of.  Reservist  called  to  colors  (J.  A.  G.) 

Habeas  Corpus— 

Arrest  by  military  authorities  mthout  probable  cause 
(Fed.Ct.) .- 

Expenses  of  officer  and  guard  producing  prisoner  in  re- 
sponse to  writof  (J.  A.  G.) - 

Minor  enlisting  without  parent's  or  guardian  a  consent, 
fraudulent  enlistment  (Fed .  Ct . ) 

Release  of  minor  from  enlistment  ( Fed .  Ct.) 

Review  of  court-martial  proceedings  (Fed  Ct.) 

Soldiers  arrested  by  State  authorities  ( Fed .  Ct. ) 

Harbor  Lines—                                                             ^u      x 
Na^^gable  waters,  riparian  rights,  paramount  authority 
of  United  States  (Fed.  Ct.) 


1912 
1917 
1912 

1912 


1915 
1912 
r  1913 
1913 
1913 
1914 
191G 

1912 
1913 

1916 

1912 

1912 
1916 
1917 

1915 


1915 
1915 
1914 

1916 

1916 
1916 

1913 

1914 

1915 
1913 
1914 
1916 

1914 


12 
15 

L'l) 

20 

26 
12 
23 
29 
31 
5 
39 

12 
18 

28 

12 

12 

1 

18 

30 

5 

5 

46 

28 

39 

47 

17 


18 
17 
25 
39 


46 


23 
666 

52 

51 


506 

10 

235 

284 
298 
338 
618 

18 
215 

604 

11 

10 
540 
679 

508 


465 
465 
429 

604 

617 
621 

208 

451 

494 
907 
389 
619 

437 


724 


INDEX. 


Bulletins. 


Heat  and  Light — 

See  also  Fuel;  Quarters,  Army. 

Allov/ance  delivered  to  ollicer's  family  (J.  A.  G.) 

Allovrance  in  kind,  enlisted  men  on  temporary  duty  in 

field  (J.  A.  G.) 

Allowance  in  public  quarters  (J.  A.  G.) 

Allowance  only  for  rooms  actually  occupied  (Comp . ) , 


Allowance  to  family  of  officer  of  temporary  duty,  change 
of  permanent  station  (J.  A.  G.") 

Allowance  to  Navy  and  Marine  Corps  (Comp.) 

Allowance  to  officer  abroad  (Comp.) 

Allowance  to  officer  sick  in  hospital,  change  of  station, 
regiment  (J.  A.  G.) 

Allowance  under  varying  conditions,  officer  on  com- 
mutation status  (Cornp.) 

Allowances  for  field  clerks  (J.  A.  G.) 

at  Both  temporary  and  permanent  quarters  ( J .  A .  G . ) 

Certificate  as  to  number  of  rooms  (Comp.) 

Commutation  of ,  commencing  July  1, 1915  (Comp.) 

Commutation  of,  enlisted  men  on  fiu-lough  or  temporary 
duty  (Comp.) 

Commutation  of  heat,  conditions  governing  payment 
(Comp.) 

Commutation  of,  rented  quarters,  officer  on  duty  in 
field  (J.  A.  G.) 

Commutation  of,  temporary  duty  training  camps 
A.G. 


(J. 


.)■ 


Commutation,  rented  quarters,  temporary  duty  on 
border  (J.  A.  G.) '. 

Fictitious  lease  of  quarters  (Comp.) 

Fiu-nished  family  of  officer  on  temporary  duty  (Comp.) . . 

Furnished  in  Adcinity  of  regular  station  (Comp.) 

Fm-nished  officer's  family,  when  (Comp. ) 

Fm-nishing  officer's  allowance  to  his  family  at  place 
other  than  his  station  (J.  A.  G.) 

Fm'nishiug  to  his  quarters  while  officer  is  on  temporary 
duty  with  troops  (J.  A.  G. ").... 

Increased  allowance  on  promotion  (Comp.) 

Issued  to  servant  in  officer's  absence  (J.  A.  G.) 

Noncommissioned  officers  on  temporary  duty  not  enti- 
tled to,  at  permanent  station  (J.  A.  G. ) 

Noncommissioned  officers,  quarters  outside  of  post  (J. 
A.G.) 

Officers  of  Revenue  Cutter  Service  (Comp.) 

Officers  on  leave  of  absence  (Comp.) 

Officers  on  temporary  duty  (Comp.) 


Pay  clerks  (J.  A.G.) 

Payment  of  commuted  value,  rooms  actually  occupied 
(Comp.) 

Quai-ters,  not  public,  occupied  by  officers  and  enlisted 
men  on  temporary  duty  (J.  A.  G.) 

Quai-ters  shared  by  civilian  (Comp.) 

Reimbursement,  house  with  more  rooms  than  authorized 
allowance  (Comp.) - 

Reimbmsement  only  for  amount  consumed  within  al- 
lowance (Comp.) 

Sale  of  fuel  to  officer's  family  (J.  A.  G.) 

When  issued  to  family  of  officer  in  his  absence  (J.  A.  G.) . 
Headquarters  Orc!Anizations — 

Service  with  troops.    See  Detached  service. 


1914 

1915 
1914 
1913 
1914 

1916 
1913 
1913 

1916 

1916 
1917 
1914 
1914 
1915 

1915 

1916 

1916 

1916 

1915 
1915 
1915 
1913 
1913 

1914 

1914 
1913 
1914 

1915 

1915 
1914 
1914 
1914 
1915 
1915 

1913 

1914 
1914 

1914 

1913 
1914 
1913 


Page. 


36 
5 

27 
5 

1 

23 
31 

18 


15 
8 
5 

18 

30 
13 

47 

18 

30 

14 

9 

1 

1 

50 

43 
4 


21 

50 

5 

5 

5 

21 

23 

39 
25 

46 

4 
5 
1 


INDEX. 


725 


Bulletins. 


Holiday  P.s.y — 

See  aho  Holidays. 

Civilian  employees,  temporary  (Comp.) 

Computation  of,  tor  piece  work,    ci\ilian  employees 
(Comp.) 

IIOLIDvYS — 

See  aho  Holiday  pay. 

Flightof  aviator  on,  without  orders,  lineof  duty(J.  A.  G.). 

Pay  of  civilian  employees  (J.  A.  G.) , 

HOMK — 

Army  officer,  selection  on  retirement  (Comp.)'. 

HoRSH  Breakers — 

Application  of  eight-liour  law  to  (J.  A.  G.) 

Horses — 

Army  officers',  not  regarded  as  baggage  on  change  of 
station  (Comp. ) 

Army,    condemned,  issued  to  Militia,  transportation 
charges  (Comp.) 

Claims  for  loss  of,  in  military  service  (Ct.  Cls.) 

Furnislied  officials  serving  abroad  (J.  A.  G.) 

Government  exhibiting  at  horse  shows  (J.  A.  G.) 

Inspection  of  Government,  at  State  lines,  reimburse- 
ment ol  common  carriers  lor  ((,'omp.) 

Issue  of  forage  to,  when  used  as  mounts  but  not  owned 
by  military  attaches  (Comp.) 

Lost  in  military  service,  claims  for  (Ct.  Cls.) 

Military  attaches  abroad,  payments  for  forage,  stabling, 
etc.  (Comp.) - 

Militia,  mounts  for  officers  participating  in  joint  ma- 
neuvers (J.  A.  G.) 

Mounted  competition,  expenses  of  attending  (J.  A.  G.). 

JNational  Guard  officers,  tran.sportation  on  muster  out 
(J.  A.  G.) - 

Officers,  shipment  of,  after  resignation  (J.  A.  G.) 

Ofiicers,  transportation  of  ( J.  A.  G .) 

Officers,  transportation  on  change  of  station,  expense 
of  (Comp.) 

Pay  and  allowance  for ,  Avh  ile  absent  on  half  pay  ( Comp . ) . 

Responsibility  for  loss  of,  used  contrary  to  contract  of 
hiring  (Comp.) 

Sufficiency  of  (J.  A.  G.) _ _ 

Transportation,  authorized  mounts,  officers  of  National 
Guard  (J.  A.  G.) 

Transportation,  charges  for  special  services  rendered 
(Comp.) 

Transportation  of,  change  of  station  of  officer  (Comp.). . . 

Transportation  of,  from  place  of  purchase  to  officer's  sta- 
tion, computation  of  cost  (J.  A.  G.) 

Transportation  of  officers'  private  mounts,  land-grant 

deductions  (Comp.) 

Horse  Shows — 

Exhibiting  Government  horses  at  (J.  A.  G.) 

Participation  by  troop  of  Cavalry  in  (J.  A.  G.) 

Hospitals — 

Army,  admission  of  sick  and  wounded  belligerents  to 
(J.  A.  G.) -  -  ■  -  - 

Army,  disposition  of  personal  property  of  retired  soldier 
w^ho  died  in  (J.  A.  G.) •  ■ 

Enlisted  men  of  National  Guard  in  private,  at  time  of 
muster  out  (Comp.) -  ■- ; 

Government,    expenses  of  treatment  of   civilians 
(J.  A.G.) .-■ 

Limit  on  expenditures  for,  general  and  special  api)ro 
priations  (J.  A.  G.) 


Year. 

No. 

Page. 

1917 

1- 

678 

1917 

l". 

668 

1912 
1913 

20 
1 

31 
106 

1912 

VI 

19 

1914 

418 

in 


1912 


^i> 


1915 
1916 
1913 
1914 

36 
8 
1 

50 

522 
553 
123 
441 

1915 

5 

469 

1912 
1917 

20 
15 

49 
669 

1914 

33 

404 

1912 
1914 

20 
50 

42 
441 

1916 
1915 
1913 

47 
39 

4 

629 
534 
150 

1915 
1916 

21 

1 

503 
540 

1914 
1913 

4;j 
29 

422 
277 

1916 

57 

636 

1916 
1915 

57 
21 

639 
503 

1914 

33 

396 

1917 

3 

647 

1914 
1915 

50 

1 

441 
458 

1914 

43 

420 

1914 

46 

431 

1917 

1^ 

(iSO 

1915 

5 

164 

1914 

50 

439 

726 


INDEX. 


Bulletins. 


Hospitals — Continued. 

Transportation  of    supplies,  purchased  from  hospital 

fund  (Comp.) 

Treatment  in.    See  Medical  treatment. 
Hot  Springs  Reservation — 

Payment  for  telephone  service  in  public  building  on, 

used  as  private  residence  (Comp.) 

Hours  of  Labor — 

(Saturday  half  holidays  (J.  A.  G.) 

Household  Goods — 

Excess  allowance,  land-grant  deductions  (J.  A.  G.) 

Includes  books  (Comp.) 

Shipment  of,  carrier's  risk  (Comp.) 

Shipment  on  Government  bill  of  lading,  carrier's  lia- 
bility (Comp.) 

Transportation    of,    iipon    change    of    officer's   station 

(J.  A.  G.) 

Transportation  rates  (Comp.) 

Increments — ■ 

Major  fractions  regarded  as  units,   sec.   24,   national 

defense  act  (J.  A.  G.) 

Indian  Country^ 

Taking  liquor  into  (J.  A.  G.) 

Indians — 

Introducing  liquors  into  Indian  Territory  (Fed.  Ct.) 

Permission  to  cut  hay  on  military  reservations  (J.  A.  G.) . 

Qualification  of,  for  enlistment  (J.  A.  G.) 

Status  in  relation  to  militia  (J.  A.  G.) 

Indian  Schools — 

Ptotired    Army    officer    acting    as    superintendent    of 

(Comp.) 

Indian  Scouts — 

Enlistments,  period  of  (J.  A.  G.) 

Indian  Territory — 

Introducing  intoxicating  liquor  into  old  (J.  A.  G.) 

Liquors,  introducing  into  country  formerly  comprising 

(Fed.  Ct.) '. . 

Indigent  ex-Union  Soldiers — 

Dying  in   District  of   Columbia,    burial   expenses   of 

(J.  A.  G.) 

Infringement  of  Patent — 

Indemnify  contractor  against  (J.  A.  G.) 

Injuries — 

Federal  employees,  compensation  for  (J.  A.  G.) 

General  prisoner,  claim  for  damages  (J.  A.  G.) 

Received  by  soldier  while  cleaning  pistol,  line  of  duty 

(J.  A.G.) 

Removal  of  civil-service  employee  who  is  subject  to 
disability  which  wou.ld  increase  possibility  of  accident 

(J.  A.G.) 

Insane  Soldiers — 

Discharged,  admission  to  Government  Hospital  for  In- 
sane, legal  residence  (J.  A.  G.) 

Revocation  of  dishonorable  discharge  (J.  A.  G.) 

Shipment  and   disposition  of  effects  after  discharge 

(J.  A.G.) 

Insanity— 

Issue  should  be  determined  when  raised  in  trial  (J.  A.  G.) 
Inspections — 

Contracts,  warranty  of  existing  conditions,   delay  in 

completing  (Ct.  Cls.) ' 

Of  horses.     See  Honses. 
Inspector  General's  Department — 

Composition  of,  under  national  defense  act  (J.  A.  G.).. 


Year. 

No. 

1915 

30 

1912 

20 

1913 

31 

1914 
1913 
1914 

8 
38 
14 

1913 

18 

1913 
1913 

8 
13 

1916 

18 

1913 

1 

1912 
1913 
1916 
1914 

12 

27 
47 
20 

1912 

20 

1915 

9 

1912 

20 

1912 

12 

1915 

1 

1912 

12 

1912 
1914 

20 

5 

1915 

9 

1912 

12 

1912 
1915 

20 
1 

1914 

50 

1915 

36 

1912 

12 

1916 

18 

Page. 


INDEX. 


727 


Bulletins. 


Instruction  Camps.     See  Military'  camps  of  instruction. 
Instructors  at  Joint  Camps.     See  oMilitia. 
Insubordination — 

Clerks    and    employees,    pay    during    snspenidon    for 

(J.  A.G.) 

Insular  Affairs,  Bureau  of — 

L  etail  of  officer  as  principal  assistant  to  chief,  duration 

(J.  A.G.) 

How  chief  of  bureau  is  appointed  (J.  A.  G.) 

Insurance —  I 

]\Iail  matter,  re.gistration  not  parcel  post  (J.  A.  G.) 

Money  received  from,  how  used  (Comp.) 

Parcel-post  packages  (J.  A.  G.) 

Insurrection.     See  Martial  law. 
Intemperance — 

See  also  wilder  Enlisted  Men,  Absence,  etc. 

Absence  of  soldier  due  to  (J.  A.  G.) 

Interior,  Department  of — 

Postmasters,  whether  may  administer  oaths  to  officers' 

returns  of  contracts  for  file  in  (J.  A.  G.) 

Internal-Revenue  Tax — 
See  also  Post  Exchanges. 
Cosmetics  and  perfumeries,  sales  by  post  exchanges 

(J.  A.  G) 

Post  exchanges,  sales  of  tobacco,  etc.  (J.  A.  G.) 

International  Association  op  Chiefs  of  Police — 

Payment  of  membership  fees  or  dues  of  (J.  A.  G.) 

International  Congress  of  Hygiene  and  Demography — 

Army  band,  use  of,  during  session  of  (J.  A.  G.) 

International  Eugenics  Congress — 

Army  officer  detailed  to  attend  meetings  of,  expenses 

(J.  A.G.) 

Intoxicating  Liquors — 

Introducing  into  country  formerly  comprising  Indian 

Territory  (Fed.  Ct.) 

Introducing  into  old  Indian  Territory  (J.  A.  G.) 

f^ale  of,  at  exchanges  in  prohibition  States  (J.  A.  G.). . 

Taking  into  Indian  country  (J.  A.  G.) 

Inventions — 

by  Employees,  use  of,  by  the  Government  (J.  A.  G.^.. 
Joint  Camps  of  Instruction.     See  Militia. 
Judge  Advocates — 

Carelessness    of,    delaying  action   on   record   of  trial 

(J.  A.  G.) 

Failure  in  duties,  miscarriage  of  justice  (J.  A.  G.) _. . 

Faihu-e  in  duty,  record  encumbered  by  in-elevant  testi- 
mony (J.  A.  G.) - 

Failure  in  duty  to  produce  evidence  (J.  A.  G.) 

Judge  Advocate  General — ■ 

Digest  of  opinions,  manner  of  citing  (J.  A.  G.) 

Judge  Advocate  General's  Department — 

Officers  of,  not  available  as  counsel  before  court-martial 

(J.  A.G.) 

Jurisdiction — ■ 

Comptroller  of  Treasury   over   disbursing   officer's  fic- 

counts  (Comp.) - •  -  - 

Disposition  of  effects  of  deceased  enlisted  men  (J.  A.  G.) 
Legality  of  sentence  authorizing  stoppage  of  pay  to  re- 
imburse post  exchange  (Comp.) -  -  - 

Militaiy  reservations,  taxation  of  Government  agencies 

(J.  A.  G.) -.-■-- 

Operation  of  State   laws   within   military   reservations 
(J.  A.  G.) - 


1912 


1912 
1913 

1915 
1913 
1915 


1913 
1914 

1915 
1915 

1912 

1912 

1912 


1912 
1912 
1913 
1913 

1913 


1915 
1915 

1915 
1915 

1912 


1915 


No. 


20 


20 
4 

32 
29 
18 


52 

1 
1 

20 

20 

20 


12 

20 

18 

1 

1 


39 
36 

3G 
30 

20 


Page. 


1917 
1912 

15 
20 

1914 

33 

1912 

20 

1915 

1 

728 


INDEX. 


Bulletins. 


-Continued, 
sentence  of 


No.       Pao:e. 


•)■ 


court-martial,   amendment  of 


JURISDICTIOK- 

Publislied 

(J.  A.  G  , 
.Remission  of  sentence  of  marine  where  detachjnent 
with  Army  was  terminated  before  execution  (J.  A.  G.) . 
Kentucky — 

Discrimination  against  Army  uniform,  etc.,  prohibited. . 
Labor  Day — 

Aviation  Corps,  flight  on,  without  orders,  line  of  duty 

(J.  A.  G.) - .- 

Laborers — 

Employment  of  enlisted  men  as  (Comp.) - 

Failure  of  defaulting  contractor  to  pay,  withholding 

payments  by  United  States  (J.  A.  G.) _ -  -  -  - 

Mechanics  and,  eight-hour  law,  employment  in  making 

repairs  to  Government  vessel  (At.  Gen.) 

on  Militia  rifle  range,  State  employees  (J.  A.  G.) 

Land — 

Abstract  of  title,  expenses  for.  appropriation  (Comp.). . 
Boimdary,  military  reserv^ation  determined  by  bound- 
ary commission,  res  judicata  (J.  A.  G.) 

Donation  of,  title  to  military  reservations  conveyed 

without  cost  to  United  States  (J.  A.  G.) 

Donation  of,  title  where  deed  was  not  recorded  (J.  A.  G.) . 

Excavations  by  adjacent  owners  (J.  A.  G.) 

Pmchased  by  Government,  rental  to  date  of  final  pay- 
ment (Comp.) 

When  title  vests  in  United  States  (J.  A.  G.) 

Land-Ctrant  Railroads — 

Computation    of    earnings    on    Government    business 

(Comp.) 

Deductions,  civilian  employees,  Signal  Corps  (Comp.). . 
Deductions,  excess  baggage  on  change  of  station  (Comp.) . 

Deductions  from  extra  fares,  special  train  (Comp.) 

Deductions,  furnishings  for  public  buildings  (Comp.).. 
Deductions,  transportation  of  officers'  private  mounts 

(Comp.) .-■--:•. 

Transportation,  deductions  for  persons  in  military  serv- 
ice (Comp.) 

Transportation  of  militia  (Ct.  Cls.) _ 

Transportation  of  militia  in  connection  with  joint  en- 
campments, deductions  (Comp.) 

Larceny,  Grand — 

Courts-martial,  combining  separate  offenses  to  make 

offense  of  (J.  A.  G.) 

Laundries — 

Post,  use  of  penalty  envelopes  (J.  A.  G.) 

Leased  Buildings.     See  Buildings. 
Leasing — ■ 

of  Public  lands.     See  Public  lands, 
of  Quarters.     See  Quarters,  Army. 
Leaves  of  Absence.     See  Absence. 
Legal  Residence — 

Insane  discharged  soldier,  admission  to  Government 

Hospital  for  Insane  (J.  A.  G.) 

Licenses — • 

See    also    Chauffeurs;     Fees,     License;     Government 

Agencies;  Taxation. 
Buildings  erected  under,  on  military  reservations,  title 

(L  A.  G.) .- 

Chauffeur's  for  Government  employees  (J.  A.  G.) 

Erection  of  buildings  in  Potomac  Park,  District  of  Co- 
lumbia (J.  A.  G.) 


1915 

1914 
1917 

1912 

1916 

1914 

1912 
1915 

1916 

1912 

1912 
1912 
1913 

1917 
1913 


1912 
1915 
1914 
1914 
1914 

1917 

1915 
1914 

1914 


1914 
1912 


1912 


1915 
1916 

1914 


5 

52 
18 

20 

8 

50 

20 
30 

57 

12 

12 

12 

1 

18 
29 


12 
26 
8 
25 
20 


14 

25 

52 


39 
20 


20 


9 
18 


466 
453 
684 

31 

550 

440 

51 
509 

638 

15 

15 

16 
121 

579 
278 


18 
507 
351 
386 
372 

647 

389 
389 

455 


408 
43 


38 


473 
581 

334 


INDEX. 


i'^  J 


Bulletins. 


A. 


Licenses — Continued. 

Erection  of  permanent  buildinf^s  on  reservations  (J 

G.) 

Imposed  by  States  for  operation  of  Government  auto- 
mobiles (J.  A.  G.) 

Local,  by  chauffeurs  for  operation  of  Government  motor 

vehicles  (J.  A.  G.) 

to  Take  water  from  Government  pipe  line  (J.  A.  G.) 

Use  of  military  reservation  by  militia  (J.  A.  G.) 

Light  Allowance — • 

See  also  Heat  and  light. 

Officers  of  Revenue-( 'utter  Service  under  Army  Regu- 
lations (Comp.) 

Lighthouse  Service — 

Status  of  employees  on  transfer  to  War  Department 

(J.  A.G.) : 

Lighthouse  Tender— 

Damaged  by  vessel  of  Quartermaster  Corps,  repairs  to 

( C  omp . ) - 

Limits  op  Punishment.     See  Discipline;  Punishment. 
Line  of  Duty — 

See  also  Beneficiaries;  Gratuity. 

Aviation  Corps,  flights  on  holidays  without  orders  (J. 

A.G.) 

Death  of  aggressor  in  altercation,  not  in  (J.  A.  G.) 

Injury  of  soldier  while  absent  on  pass  (J.  A.G.)... 

Injury  received  by  soldier  while  cleaning  pistol  (.1.  A. 

G.) 

Injury  while  on  hunting  pass  (J.  A.  G.) _- 

Sergeant  assuming  command  while  absent  without  lea\e 

(J.  A.G.) 

Surgical  operations  (J.  A.  G.) 

Line  Officers — 

Transfer  of  to  Corps  of  Engineers  (J.  A.  G.) 

Liquidated  Damages — • 
See  also  Contracts. 

Supplemental  contracts,  waiver  (Fed.  Ct.) 

Liquors— 

See  Intoxicating  liquors. 

Destruction  of  by  military  force  (St.  Ct.) 

Living  Expenses — 

See  also  Traveling  Expenses. 

Civilian  clerk  of  Quartermaster  Corps  on  temporary  duty 

(Ct.  Cls.) 

Longevity  Pay — ■ 

See  also  Pay  of  officers, 
of  Nurses.     See  Nurses,  Army, 
of  Retired  officers.     See  Retired  officers. 
Lost  Files.     See  Discipline. 
Lump-Sum  Appropriations — 
See  also  Appropriations. 

((3.  A.  G.) 

(Comp.) 

(J.  A.G.) 

(J.  A.G.) 

Increased  pay  of  clerks,  etc.,  from^j^j  ^  q')'""""" 

[j'.  A.  g'.)'-'"-'-'-'- ■  ■ 


Page. 


1914 

1914 

1917 
1913 
1913 


1914 
1917 
1914 


1912 
1915 
1913 

1915 
1915 

1913 
1913 

1917 


1914 


1917 


1914 


/(J.  A 


Payment  of  clerks,  etc.,  from  |)(_i(jmp  ^ 


(J.  A.G.).--. 

(Comp.) 

[(J.  A.G.)..-. 

G.) 


1913 
1913 
1913 
1913 
1913 
1913 
1913 
1913 
1914 
1914 
1912 
1912 


14 

52 

18 
35 
13 


50 
18 
4G 


20 

26 
o5 

9 

4 

1 

4 

18 


46 
15 

46 


360 
453 

* 

671 
307 
180 


446 
675 

435 


31 
505 
305 

473 

480 

122 
145 

676 


436 


669 


436 


1 

107 

1 

133 

17 

190 

23 

226 

23 

234 

27 

246 

31 

289 

38 

315 

5 

337 

8 

343 

20 

37 

20 

48 

730 


INDEX. 


Bulletins. 

Year. 

No. 

Page. 

Machine-Gun  Units — 

Militia,  organization  of  (J.  A.  G.) 

1912 

12 

12 

Mail  Matter — 

See  also  Envelopes. 

Parcel-post  packages,  official  business  (At.  Gen.) 

1913 

13 

187 

•  Parcels  exceeding  4  pounds  in  weight  not  to  be  franked 

(J.  A.  G.) 

1913 

8 

164 

Registration  of,  not  insurance,  object  of  (J.  A.  G.) 

1915 

32 

515 

Making  Good  Time  Lost.     See  Enlisted  men. 

Maneuvers.     See  Militia. 

. 

Manure — 

Disposition  of  proceeds  of  sales  from  ambulance  com- 

panies (J.  A.  G.) 

1914 

50 

444 

Marine  Corps — 

See  also  Na\'y. 

Deserters,  reward  for  apprehending  while  serving  in  (J. 

A.  G.) 

1912 

20 

35 

Enlisted  men  sentenced  by  Army  court-martial,  trans- 

portation and  allowances  (J.  A.  G.) 

1915 

30 

509 

Enlistment  in,  when  becomes  effective  (Comp.) 

1912 

12 

18 

Jurisdiction  of  naval  court-martial  to  try  marine  for 

offense  committed  while  detached  eerAdng  with  Army 

(Fed.  Ct.) 

1915 

36 

525 

Remission  of  sentence  of  marine  where  detached  service 

with  Army  was  terminated  before  its  execution  (J. 

AG.) 

1914 

52 

453 

Retired  officers  acting  as  agents  in  prosecution  of  claims 

against  the  Government  (At.  Gen.) 

1912 

20 

52 

Marines — 

Reimbursement  for  quartermaster  stores  supplied  to, 

while  serving  Math  Army  (J.  A.  G.) 

1914 

43 

419 

Remission  of  sentence  where  detached  service  with 

Army  terminated  before  execution  of  (J.  A.  G.) 

1914 

52 

453 

Martial  Law — 

Power  of   State  goA-emors   to  determine  necessity  for 

(St.  Ct.) .■ 

1913 

17 

208 

Powers  of  State  officers  under  (St.  Ct.) 

1913 

23 

244 

Private  property,  disposition  of,  taken  under  (J.  A.  G.). 

1916 

18 

579 

Responsibility  for  destruction  of  private  property  dur- 

ing (J.  A.  G.) 

1914 

33 

396 

Scope  of,  under  declarations  of  §tate  governors  (St.  Ct.). 

1913 

17 

208 

Maryland — 

Discrimination  against  Army  uniforms,  etc.,  prohibited. 

1917 

18 

684 

Massachusetts — 

Discrimination  against  Army  uniform,  etc.,  prohibited. 

1917 

18 

684 

Material  Men — 

Failure  of  defaulting  contractor  to  pay,  withholding 

payments  by  United  States  (J.  A.  G.) 

1914 

50 

440 

Mechanics  and  Laborers — ■ 

Eight-hoiu*   law,    employment   in    making   repairs   to 

Government  vessels  (At.  Gen.) 

1912 

20 

51 

Medals  op  Honor — • 

EAddence  necessary  to  obtain  (J.  A.  G.) 

1913 

1 

121 

Findings  of  board  under  national  defense  act  (J.  A.  G.). 

1917 

15 

661 

Medical  Corps — 

Increase  of  officers  (J.  A.  G.) 

1916 

34 

609 

Issue  of  fuel  in  kind  to  civdlian  employees  (J.  A.  G.). . . 

1914 

43 

418 

Officers,  examination  for  promotion,  law  governing  (J. 

A.  G.) 

1916 
1916 

18 
18 

575 

Pay  of  enlisted  men  in,  national  defense  act  (Comp.). . . 

583 

Promotions,  ser\dce  under  prior  appointment  (J.  A.  G.). . 

1912 

20 

44 

Medical  Department — 

Absorption  of  certain  officers  in  consolidated  Quarter- 

master Corps,  full  opinion  (J.  A.  G. ) 

1912 

22 

88 

INDEX. 


731 


Bulletins. 


Medical  Department — Continued. 

Dental  surgeons,  computation  of  length  of  service,  na- 
tional defense  act  (Comp. ) 

Rank  of  sergeants,  first  class  (J.  A.  G. ) 

Soldiers  in  private  hospitals  at  time  of  muster  out 

(Comp. ) 

Medical  Equipment — 

Sale  to  the  American  Red  Cross  (J.  A.  G.) 

Medical  Reserve  Corps — 

Absence,  leave  of,  after  relief  from  active  duty  (J.  A. 

G.) 

Appointment  of  ofilcers  of,  as  summary  court  officers 

(J.  A.  G.) 

Officers,  computation  of  tune  for  longevity  increase  (J. 

A.  G.). 

Officers  not  in  active  service,  purchasing  ordnance  (J. 

A.  G.) 

Pay  begins  with  active  service  (J.  A.  G.) 

Relations  of  members  to  Army  and  militia  (J.  A.  G.). . 
Medical  Treatment — 
See  also  Hospitals. 

Army  Reserve,  members  of  (J.  A.  G.) 

Army  Reserve,  members  of  (J.  A.  G.) 

Civilian  employees  (Comp. ) 

Civilian  employees  in  hospitals  (J.  A.  G.) 

Employees  of  Missis-sippi  River  Commission  (J.  A.  G.). . 

Employees  ou  Government  vessels  (J.  A.  G.) 

Officers  injured  while  on  leave  (J.  A.  G.) 

Officer  on  leave  of  absence  (J.  A.  G. ) 

Osteopathic  treatment  not  within  regulation  authorizing 

(.1.  A.  G. ) 

Private  hospital,  national  guardsmen  (Comp.) 

Seamen  in  Army  transport  service,  appropriations  (J.  A. 

G.) 

Soldiers  injured  while  on  pass  (J.  A.  G.) 

Member  of  Court — 
See  Courts-martial. 

Objection  can  be  made  to  at  any  time  during  proceed- 
ings (J.  A.  G.) 

Membership  Pees  or  Dues — 

Associations,    International    Association    of    Chiefs    of 

Police  (J.  A.  G.) 

Mexico — 

Officer  traveling  with  detachment  as  escort  to  officer  of 

(J.A.G.) - :■ 

Use  of  Armv  transport  in  rescmng  American  refugees  in 

(J.A.G.) 

Michigan  Central  Railroad — 

I.and-grant  roads,  computation  of  Government  business 

(Comp.) 

Mileage — 

See  also  Transportation;  Travel  allowances. 
Discharged  soldiers,  between  United  States  and  Alaska 

(Comp.) 

Hire  of  automobile  for  officer  traveling  on  (Comp.) 

Officer  traveling  with  detachment  as  escort  to  officer  of 

Mexican  Army  (J.  A.  G.) 

Retired  officers  serving  as  witnesses  (Comp.) 

Station  changed  while  officer  is  on  leave  of  absence 

(Comp.) 

Travel  performed  by  officer,  not  under  competent  orders 

(J.  A.  G.) 


Year. 


No. 


Page. 


1916 
1917 

1917 

1912 

1915 

1914 

1915 

1917 
1913 
1914 


1915 
1916 
1914 
1914 
1913 
1913 
1913 
1916 

1915 
1917 

1912 
1914 


1917 

1912 

1915 
1912 

1912 


1913 
1914 

1 
50 

1915 
1916 

1 

47 

1913 

4 

1915 

1 

28 
15 

18 

12 

14 

52 

36 

3 
38 
25 


18 
8 
14 
14 
31 
17 
4 


26 
3 

12 
20 


18 

20 

1 
20 

12 


732 


INDEX. 


Bulletins. 


Military  Academy — 

See  also  Cadets. 

Engineer  detachment,  distribution  of  profits  of  post 
exchange  (J.  A.  G.) 

Engineer  detachment,  status  of  (J.  A.  G.) 

Enlisted  men  appointed  as  cadets,  eligibility  (J.  A.  G.) 

Enlisted  men,  extra-duty  pay  for  service  at  (Comp.) 

Leave  of  absence  for  employees  at  ( J .  A .  G . ) 

Leave  of  absence  for  pay  clerks  (J.  A .  G .) 

Leave  of  absence  for  per  diem  employees  at  (Comp.) . . . 

Reappointment  of  cadet  under  sec.  1325,  Revised 
Statutes  (J.  A.  G.) 

Stoppage  of  pay  for  absence  due  to  misconduct  appli- 
cable to  detachment  at  (J.  A.  G.) 

Teacher  of  French,  French  citizen,  oath  (J.  A.  G.) 

Military  Attaches — 

Abroad,  payment  of  traveling  expenses  (Comp.) 

Abroad,  pay  of  orderly  and  for  tips  (Comp.) 

Abroad,  traveling  expenses  of<  j*^™  q) 

Forage  for  horses  used  as  mounts  but  not  owned  by 

(Comp.) _ -  - 

Payments  for  forage,  stabling,  etc.,  mounts  of,  while 

abroad  (Comp. ) 

Traveling  expenses  abroad  as  miiitary  observers  (J.  A.  G.) 
Traveling  expenses  going  to  and  retm-ning  from  post  of 

duty  (Comp.) 

"Military  Expedition  or  Enterprise" — 

What  constitutes,  conspiracy  (Fed.  Ct.) 

Military  Force — 

Destruction  of  liquor  by  (St.  Ct.) 

Military  Instruction — 

Issue  of  arms  and  equipment  to  liigh  schools  (J.  A.  G.). . 
Military  Camps  of  Instruction — 

Leaves  of  absence  to  civilian   employees  to  attend 

(J.  A.  G.) 

Military  Jurisdiction— 

Civil   service   employees   at  Fort   Bavard,    N.    Mex. 

(J.  A.  G.) - 

Military  Justice.     <See  Notes  on  military  justice. 
Military  Observers — 

Abroad,  traveling  expenses  of  (J.  A.  G.) ^ 

Traveling  expenses  of  military  attaches  as  (J.  A.  G.) . . . 
Military  Posts — 

See  also  Military  reservations. 

Title  to  reservation  conveyed  without  cost  to  United 

States  (J.  A.  G.) 

Military  Prison — 

Quarters  for  officers  in  command  of  disciplinary  com- 
panies at  (J.  A.  G.) 

Military  Prisoners — 

See  General  Prisoners;  Prisoners. 
Military  Reservations — 
See  also  Military  Posts. 

Authority  to  make  regulations  for  government  of,  viola- 
tions (J.  A.  G.) ;.. 

Boundary  of,  determined  by  boundary  commission,  res 

adjudicata  (J.  A.  G.) 

Donation  of  chapel  (J.  A.  G.) 

Erection  of  sectarian  chapels  on  (J.  A.  G.) 

Government  controls  highways  through  (J.  A.  G.) 

Improvement  of  private  roads  leading  to  (J.  A.  G.) 


1912 
1912 
1917 
1912 
1912 
1913 
1913 

1912 

1914 
1912 

1914 
1914 
1914 
1914 

1912 

1914 
1915 

1914 

1916 

1917 

1913 

1915 

1912 


1914 
1915 


1912 
1915 


1914 


20 
20 
9 
12 
20 
17 
23 

12 

33 
20 

46 
43 
43 
50 

20 

33 
9 

50 

34 

15 

31 

39 

20 


50 
9 


12 


46 


1912 

12 

1913 

31 

1912 

20 

1913 

17 

1913 

8 

INDEX. 


733 


Bulletins. 


Military  Reservations — Continuc^d. 

Jurisdiction,  taxation  by  State  of  Government  agencies 
on  (J.  A.  G.) 

Leases  for  benefit  of  post  exchange  (J.  A.  G.) 

License  to  erect  permanent  buildings  on  (J.  A.  G.) 

Operation  of  State  laws  within  (J.  A.  G.) 

Permission  for  erection  of  memorials  on  (J.  A.  G.) 

Permission  to  Indians  to  cut  hay  from  (J.  A.  G.) 

Power  of  President  over,  same  as  other  public  lands 
(J.  A.G.) 

Railroad  right  of  way,  power  of  Secretary  of  War  (J.  A.  G.) 

Regulations  as  to  quarantine  and  practice  of  medicine 
(J.A.G.) 

Removal  of  telegi-aph  lines  (J.  A.  G.) 

Repair  of  railroad  siding  on  (J.  A.  G.) 

Sale  of  sewage  ili'om  (J .  A .  G . ) 

Title  conveyed  without  cost  to  United  States  (J.  A.  G.). 

Title  to  buildings  erected  on.  under  license  (J.  A.  G.). . . 

Use  of,  by  Organized  Militia  (J.A.G.) 

Military  Service — 

Claim  for  horses  lost  in  (Ct.  Cls.) 

Loss  of  private  property  in  (Ct.  Cls.) 

Purchase  of  supplies  from  persons  in  (J.  A.  G.) 

Military  Supplies — 

Purchase  of,  by  Organized  Militia  (J.  A.  G.) 

Military  Training  Camps — 

Medical  supplies  for  (J.  A.  G.) 

Public  property,  sales  of,  to  attendants  (J.  A.  G.) 

Militia — 

See  also  National  Guard. 

Accountability  for  property  (J.  A.  G.) 

Accounting  for  tent  equipage  loaned  by  governor  for 
relief  of  flood  sufferers  ( J .  A .  G . ) 

Aids  to  comraand(n's  in  chief  and  brigadier  generals 

(J.  A.  G.) .--:■-■■. 

Army  officers  holding  commissions  in  (J.  A.  G.) 

Army  officers  on  active  list,  acceptance  of  office  in 

(At.  Gen.) 

Army  officers  on  active  list  holding  office  in,  compati- 
bility (J.A.G.) 

Authority  of  President  to  send  outside  of  United  States 

(At.  Gen.) 

Called  into  ser\'ice  of  United  States,  service  of  enlisted 

men  on  active  list  of  Regular  Army  in  (J.  A.  G.). .  - . . 
Clothing  allowance   on  muster  into   Federal  Service 

(J.  A.  G.) - ;... 

Condemned    Army    horses    issued    to,    transportation 

charges,  appropriation  (Comp.) . 

Conformity  to  Regular  Army  organization  (J.  A.  G.). . . . 
Cost  of  transportation  of  subsistence  purchased  for,  in 

connection  with  joint  encampment  (J.  A .  G.) 

Duties  of  members  of  Medical  Reserve  Corps  (J.  A.  G.) . . 
Eligibility  for  service,  pensioner  for  phvsical  disability 

(J.  A.G.) '. 

Extent  of  equipment  with  arms,  etc.  (J.  A.  G.) 

Instructors  at  joint  camps  composed  of  Regular  troops 

and,  detached  service  (J.  A.  G.) 

Joint  encampments,  pay,  transportation  and  subsistence 

(Comp.) 

Mounts  for  officers  participating  in  joint  maneuvers 

(J.  A.G.) 

Officers  of  Army  detailed  as  instructors  and  inspectors, 

transportation  (J.  A.  G.) 


Year. 


No. 


1912 

20 

1913 

35 

1914 

14 

1915 

1 

1913 

27 

1913 

27 

1912 

12 

1913 

18 

1913 

31 

1913 

29 

1913 

27 

1913 

17 

1912 

12 

1915 

9 

1913 

13 

1917 

15 

1917 

18 

1914 

43 

1915 

1 

1916 

18 

1916 

47 

1914 

20 

1912 

12 

1912 

20 

1912 

12 

1912 

12 

1912 

12 

1912 

12 

1914 

39 

1917 

15 

1915 

36 

1913 

18 

1914 

39 

1914 

25 

1914 

50 

1913 

29 

1914 

39 

1913 

13 

1912 

20 

1912 

12 

Page. 


734 


INDEX. 


Bulletins. 


Militia — Continued. 

Organization  of  machine-gun  units  (J.  A.  G.) 

Pay  of  officer  during  encampment,  rank  above  com- 
mission (J.  A.  G.) 

Proceeds  from  rental  of  rifle  range  (J.  A.  G.) 

Property  shortage  of  officers  of  Organized,  on  muster 

out  (J.  A.  G.).. ^ 

Purchases  of  military  supplies  (J.  A.  G.) 

Quarters  for  officers  of,  attending  service  schools  (J.  A.  G . ) 

Radio  stations  for  (J.  A.  G.) 

Relation  to  Army  Reserve  (J.  A.  G.) 

Repair  of  property  issued  to  (J.  A.  G.) 

Reserves,  attendance  of,  at  encampments  and  pay  for 

(.1.  A.  G.) 

Ptesidence  of  members  of  District  of  Columbia  Militia 

(J.  A.  G.) ...-. 

Retired  sergeant  may  be  paid  for  service  in  (J.  A.  G.) . . 
Retirement  of  officers  of  District  of  Columbia  Militia 

(J.  A.  G.) 

Rifle  range,  laborer  on  State,  employee  (J.  A.  G.) 

Service  and  pay  of  retired  officers  and  enlisted  men 

(Comp.) 

Status  of  Indians  in  relation  to  (J.  A.  G.) 

Transportation  in  connection  with  joint  encampments, 

deductions  under  land-grant  acts  (Comp.) 

Transportation,  land-grant  roads,  deductions  (Ct.  Cls.).. 
Use  of  military  reservations  ( J .  A .  G . ) 

Use  of,  outside  of  United  States^ )  .\  q„„  '\ 

Minnesota— 

Discrimination  against  Army  uniform,  etc.,  prohibited  . 
Minors — 

Appointment  of  guardian  to  consent  to  enlistment  of 

(J.  A.G.) 

Misconduct — 

Absence  on  account  of.     See  Enlisted   men;  Officers, 

Army. 
Gratuity,  deceased  officers  and  soldiers,  carelessness  or 

accident  not  (J.  A.  G.) 

Gratuity,  what  constitutes,  to  prevent  payment  of,  on 

death  of  soldier  (J.  A.  G.) 

Mistakes — 

Adjustment  of,  made  on  final  payment  to  contractor 

(Comp. ) 

Telegraph  messages,  night  and  lettergram  rates  (Comp.). 
Money — 

Exchange,  officers  serving  abroad,  pay,  appropriation 

(Comp.) 

Loss  in  gold  coin  by  abrasion  during  shipment  (Comp.). 
Post  exchange,  responsibility  for,  where  collected  at 

pay  table  as  due  from  enlisted  men  (J.  A.  G.) 

Prisoner  smuggling,  confiscation  illegal  (J.  A.  G.) 

Moral  Turpitude — 

Retention  of  soldiers  guilty  of,  not  favored  (J.  A.  G.). . . 
Motorcycles — 

Passenger-carrying  vehicles  (Comp. ) 

for  Signal  Corps,  whether  passenger-carrying  vehicles 

(J.  A.G.) 

Motor  Trucks — 

Purchase  of,  requirements  as  to  advertising  (Comp.) 

Motor  Vehicles,  Government — 
See  Automobiles. 


Year. 

No. 

1912 

12 

1914 
1913 

43 
23 

1917 
1915 
1913 
1913 
1913 
1914 

15 
1 

23 
1 
8 

20 

1913 

13 

19^3 
1913 

18 
18 

1914 
1915 

14 
30 

1913 
1914 

27 
20 

1914 
1914 
1913 
1912 
1912 

52 
25 
13 
12 
12 

1917 

18 

1914 

46 

1912 

12 

1912 

12 

1915 
1914 

9 
25 

1915 
1913 

30 
1 

1912 
1915 

12 
21 

1917 

18 

1916 

39 

1914 

50 

1915 

14 

Page. 


12 

419 
229 

663 

459 
228 
122 
159 
367 

180 

217 
218 

357 
509 

262 
364 

455 

389 

180 

14 

23 

685 


429 

10 
11 


475 
387 


511 
132 

14 
500 

681 

619 

445 

484 


INDEX. 


735 


Bulletins. 


Mounted  Competition — 

Expenses   of   officers   and    enlisted    men,    with    their 

mounts,  attending  (J.  A.  G.) 

Mounted  Officers — 

Sufficiency  of  mounts  (J.  A.  G.) 

Mounts.     See  Horses. 
Munitions  of  War — 

What  articles  constitute  (At.  Gen.) 

Music — 

Army  band,  use  of,  during  sessions  of  International 

Congress  of  Hygiene  and  Demography  (J.  A.  G.) 

Muster  Out — 

Enlisted  men  of  National  Guard  in  private  hospitals  at 

time  of  (Comp.) 

National  Guard  officer  in  Texas,  legality  of  (J.  A.  G.).. . 
National  Cemeteries.     See  Cemeteries. 
National  Defense  Act — 
See  Specific  matter. 
Construction  of  certain  provisions — 

Details  in  Staff  Departments  (J.  A.  G.) 

Dental  Corps  as  to  reorganization  of,  under.     See 
Dental  surgeons. 

Examination  of  field  officers  (J.  A.  G.) 

Findings  of  board  as  to  medals  of  honor  (J.  A.  G.)  . . 

Increments,  application  of  section  24  (J.  A.  G.) 

Limits  of  age  for  enlistment  (sec.  27)  (J.  A.  G.) 

National  Guard  organization,   general  exceptions 

(J.A.G.) 

Order  of  filling  vacancies,  grade  of  second  lieuten- 
ant (sec.  24)_(J.  A.  G.) 

Personal  examination  of  officers  transferred  (J.  A.  G.) 
Porto  Rico  Regiment  of  Infantry  (sec.  21)  (J.  A.  G.) 
Regimental  adjutants,  service  with  troops,  detached 

service  law,  when  operative  (J.  A.  G .) 

Section  111,  interpretation  of  (J.  A.  G.) 

Transfer  of  officers  (sec.  25)  (J.  A.  G .) 

National  Emergency— 

Status  of  employees  of  Lighthouse  SerAice  transferred 

to  War  Department  in  time  of  (J.  A.  G.) 

National  Guard — 
See  Militia. 

Adjutant  general,  State,  Territory,  or  District  of  Colum- 
bia, status  of  (J.  A.  G.) 

Age  qualification  for  enlistment  (J.  A.  G.) 

Authority  of  governor  to  accept  officer's  resignation 

(J.A.G.) 

Availability  for  general  war  purposes  (J.  A.  G.) 

Aviation  servdce,  increase  pay  for  (J.  A.  G.) 

Called  into  United  States  service,  absence  of  Govern- 
ment employees  in  (Comp.) 

Calling  forth  to  guard  ammunition  plants  (J.  A.  G.). . . . 

Calling  forth  to  guard  railroads  (J.  A.  G.) 

Chai)lains,  grade  and  pay  (J.  A.  G.) 

Clothing  allowance  on   muster  into   Federal   service 

(J.  A.G.) 

Clothing  issued  to,  title  (J.  A.  G.) 

Detail  of  noncommissioned  officers,  service  with  (J.  A. 

G.) : 

Discharges,  account  of  dependent  families  (J.  A .  G.)  — 
Draft  of  part  of,  to  meet  sudden  emergency  (J.  A.  G.).., 
Effect  of  discharge  of  members  by  United  States  (J.  A. 
G.) 


Year. 

No. 

1914 

50 

1913 

29 

1913 

29 

1912 

20 

1917 
1917 

18 
15 

1916 

18 

1916 
1917 
1916 
1916 

18 
15 
18 
18 

1917 

15 

1916 
1917 
1916 

18 
18 
18 

1916 
1916 
1916 

18 
18 
18 

1917 

18 

1916 
1916 

IS 
47 

1916 
1916 
1916 

34 
18 
34 

1916 
1917 
1917 
1916 

18 
18 
18 
57 

1917 
1917 

15 
3 

1916* 

1916 

1916 

28 
18 
18 

1916 

34 

Page. 


736 


INDEX. 


Bulletins. 


National  Guard — Continued. 

Enlisted  men.     Sec  Eidisted  men,  National  Guard. 
Enlisted  men,  discharge,  term  of  enlistment  (J.  A.  G.). . 
Enlisted  men,  in  private  hospital  at  time  of  muster  out 

(Comp.) ; 

Eidistment  in,  minors  under  18,  not  eligible  (J.  A.  G.). . 
Enlistment  under  State  law,  status  while  in  Federal 

service  (J.  A.  G.) 

Exemption  from  service  in,  waiver  (J.  A.  G.) 

Federal  oath,  effect  of  taking  (J.  A.  G.) _ 

Gratuity  laws  applicable  to,  while  in  United  States 

service  (Comp.) 

Inspectors  of  small-arms  practice,  not  authorized  (J. 

A.  G.) --. 

Legality  of  muster  out  of  headf^uarters  officer  (J.  A.  G.). 
Method  of  bringing  into  servdce  of  United  States  (J. 

A.G.) 

Officers.    See  Officers,  National  Guard. 

Officers  or  employees  of  Government,  members  of,  leaves 

of  absence  to  engage  in  field  or  coast-defense  training 

(J.  A.G.) , 

Organization,  exceptions  authorized  by  Secretary  of 

War  (J.  A.  G.) 

Organization,  general  exceptions  (J.  A.  G.) 

Organizations  below  minimum  strength,  pay  (J.  A.  G.V 
Pay  of  men  rejected  by  State  authorities  before  muster- 
in  (Comp.) 

Payment  of,  for  State  duty  under  call  of  governor  (J. 

•  A.G.) 

Property  shortage  of  officers  on  muster  out  (J.  A.  G.). . . 
Recruits,  payment  of,  between  enlistment  and  date  of 

muster-in  or  rejection  (Comp.) : 

Regular  officer  holding  commission  in  employment  as 

posse  comitatus  (J.  A.  G.) 

Reserve  officers.     See  National  Guard  Reserve  officers. 
Retired  enlisted   men,   pay  status  on  enlistment  in 

(Comp. ) ._ - 

Retii'ed  officer  commissioned  in,  status  (J.  A.  G.) 

Second   lieutenants,    appointments,    antedating   rank 

(J.  A.G.) 

Section   111,   national  defense  act,   intei-pretation   of 

(J.  A.G.) 

State  authorities,  power  over,  after  call  for  Federal 

service  (J.  A.  G.) 

State  duty  under  call  of  governor,  payment  for  (J.  A.  G.) 
Status  of  members,  under  call  for  Federal  service,  1916 

(J.  A.G.) 

Telegraph  service  at  Government  rates  (J.  A.  G.) 

Travel  expenses  of  enlisted  men  in  responding  to  call 

(J.  A.G.) 

Uniform  clotlung,  title  to  (J.  A.  G.) 

National  Guard  Organization — 

General  exceptions,  national  defense  act  (J.  A.  G.) 

National  Guard  Reserve — 

Furlough  of  enlisted  men  to  (J.  A.  G.) 

Furlough  of  enlisted  men  to,  restoration  to  acti^  e  list 

(J.  A.G.) 

Passing  to,  of  enlisted  men  while  in  Federal  service 

(J.  A.G.) 

Restoration  of  reservist  to  active  duty  (J.  A.  G.) 

National  Guard  Reserve  Officers — 

Appointment  in  Regular  Army  (J.  A.  G.) 


1917 

1917 
1916 

1916 
1916 
1916 

1916 

1916 
1917 

1916 


1916 

1917 
1917 
1916 

1917 

1917 
1917 

1916 

1917 

1917 
1916 

1916 

1916 

1916 
1917 

1916 
1916 

1917 
1917 

1917 

1916 

1916 

1916 
1916 

1917 


Page. 


9 

18 

28 

18 

28 
47 

28 

28 
15 

18 


28 

9 
15 
57 


18 
15 

47 

15 

15 

28 

18 

18 

47 
18 

28 
28 

18 
9 

15 

47 
3 

28 

47 

15 


651 

680 
597 

576 
598 
627 

604 

596 
664 

567 


596 

652 
664 
636 

647 

676 
663 

632 

665 

668 
600 

575 

567 

626 
676 

588 
598 

676 
652 

664 

628 

643 

598 
628 

664 


INDEX. 


737 


Bulletins. 


National  Guard  Service — 

Examination  of  enlisted  men  for  commission,  credit  for 

(J.  A.G.) 

National  Home  for  Disabled  Volunteer  Soldiers — 

Jurisdiction,  action  against,  in  State  court   (St.  Ct.) 

Naturalization — 

Alien  enlisted  men  fiirlouglied  to  reserve,  not  honorable 

discharge  (sec.  2166,  Rev.  Stat.)  (Fed.  Ct.) 

Navigable  Waters — 

See  also  Rivers  and  harbors. 

Construction  of  term  "Appurtenances"  (J.  A.  G.) 

Improvement  of,  liability  of  Government  for  incidental 

damage  to  wharf  (J.  A.  G.) 

Obstructions  in  stream  with  navigable  and  unnavigable 

reaches  in  different  States  (J.  A.  G.) 

Overflow  due  to  public  improvements  (J.  A.G.) 

Permission  of  President  to  land  foreign  cable  in  (J.  A.  G.). 
Right  of  United  States  to  use  river  bed,  riparian  owners 

(J.  A.G.) 

Rights  of  tisliing  and  navigation,  fishing  nets  an  obstruc- 

"  tion  (J.  A.  G.) 

Riparian  rights,  paramount  authority  of  United  States 

(Fed.  Ct.) 

Unlawful  structures  over  (J.  A.  G. ) 

Use  of  lands  underneath  (J.  A.  G.) 

Navy— 

See  also  Marine  Corps. 

Counting  commissioned  service  in,  to  determine  rank  of 

Army  officers  appointed  on  same  date  (J.  A.  G.) 

Deserters,  reward  for  apprehending,  while  serving  in 

(J.  A.G.) 

Paymasters'  clerks,  officers  within  meaning  of  mileage 

law  (Ct.  Cls.) 

Negligence — 

Loss  of  enlisted  men's  pay  entrusted  to  officer  (J.  A.G.).. 
Negotiable  Instruments — 

Payment  of  stolen  check  (J.  A.  G.) 

Neutrality — - 

Admission  of  sick  and  wounded  belligerents  to  Army 


hospitals  (.;.  A.G.) 

Arms  and  ammunition,  importation  of  (At.  Gen.) 

Arrest  of  alien  by  military  authorities  (Fed.  Ct.) 

Exportation  of  munitions  of  war  (Fed.  Ct.) _. 

"Military  expedition  or  enterprise,"  what  constitutes, 
conspiracy  (Fed.  Ct.) 

Provisions  and  clothing  for  troops,  whether  arms  and 
munitions  of  war  ( At.  Gen.) • 

What  are  arms  and  munitions  of  war  (At.  Gen.) 

New  Hampshire —  _   ^ 

Discrimination  against  Army  uniform,  etc.,  prohibited. 
Newspapers — 

Authority  to  purchase  for  troops  (J.  A.  G.) 

Rates  for  advertising  in  (J.  A.  G.) 

New  York —  .    . 

Discrimination  against  Army  uniform,  etc.,  prohibited. 
Noncommissioned  Officers — 

See  also  Enlisted  men.  _ 

Desertion,  effect  on  position  (J.  A.  G.) 

Detail  for  duty  with  National  Guard,  number  author- 
ized (J.  A.  G.) ;.•;■-•■ 

Detail  of,  for  service  with  National  Guard  (J.  A.  G.) 

Heat  and  light,  quarters  outside  post  (J.  A.G.) - .  - . 

Power  of  court-martial  to  reduce  to  lower  grade  (J.  A.  G.). 


1917 
1913 

inio 

1912 
1915 

1914 
1914 
1914 

1915 

1914 

1914 
1913 

1914 

1914 
1912 
1914 
1915 
1913 


1914 
1912 
1913 
1913 

1916 

1913 
1913 

1917 

1914 
1914 

1917 


1915 

1917 
1916 
1915 
1916 


18 
31 

28 

12 

14 

33 
14 
39 

36 

33 

46 
27 
14 

39 
20 

8 
18 

1 


43 
12 
17 
17 

34 

29 
29 

18 

14 
20 

18 


21 

3 

2S 
21 
13 


Page. 


93668°— 17 


-47 


738 


INDEX. 


Bulletins. 


Noncommissioned  Officers — Continued. 

Rank  of  sergeants,  first  class,  Medical  Department  (J. 
A.G.) 

Ileduction  in  rank  on  charge  of  desertion  (J.  A.  G.). .  - 

on  Temporary  duty  in  field,  not  entitled  to  fuel  allow- 
ance at  permanent  station  (J.  A.  G.) 

Notes — 

on  Administration  of  military  justice  (J.  A.  G.) 

Notes  on  Military  Ju.stice — 

Charges,  certainty  in  alleging  place  of  crime  (J.  A.  G.). 

Clemency,  recommendation  to  (J.  A.  G.) 

Delay,  carelessness  of  court  or  judge  advocate  (J.  A.  G.) 

Depositions,  essential  facts  to  be  covered  (J.  A.  G.) 

Desertion,  no  defense,  soldier  intented  to  go,  and  did 
go,  to  another  post  (J.  A.  G.) 

Findings,  improper,  lack  of  care  of  members  of  court 
(J.  A.G.) 

Findings,  improper,  resulting  in  unnecessary  delays 
(J.  A.  G.) 

Findings,  improper,  trials  for  desertion,  absence  with- 
out leave  (J.  A.  G.) 

Findings,  making  such  amendments,  specification  fails 
to  state  offense  (J.  A.  G.) 

Hearsay  evidence  not  admissible  because  made  by  offi- 
cer in  course  of  investigation  (J.  A.  G.) 

Insanity,  issue  should  be  determined  when  raised  in 
trial  (J.  A.  G.) 

Judge  advocate,  failure  in  duties,  miscarriage  of  justice 
(J.  A.G.) 

Judge  advocate,  failure  in  duty,  record  encumbered  by 
irrelevant  testimony  (J.  A.  G.) 

Judge  advocate,  failure  in  dutv  to  produce  evidence 

(J.  A.G.) : 

Objection  to  member  can  be  made  at  any  time  during 
proceedings  (J.  A.  G.) 

Plea  of  guilty,  erroneous  information  by  court  respect- 
ing punishment  (J.  A.  G.) 

Plea  of  guilty,  taking  evidence  not  precluded,  degree 
of  punishment  (J.  A.  G.) 

Pleas,  duty  of  president  of  court-martial  respecting 
(J.  A.G.). 

Record  of  trial,  errors  in,  lack  of  care  (J.  A.  G.) 

Record  of  trial,  errors  in,  reconvening  court  (J.  A.  G.). 

Record  of  trial,  incomplete,  correction  (J.  A.  G.) 

Record  of  trial,  unnecessary  return  of  (J.  A.  G.) 

Sentence,  dishonorable  discharge,  suspension  of,  when 
proper  (J.  A.  G.) 

Sentence,  extended  periods  of  confinement,  failure  to 
include  hard  labor  (J.  A.  G.) 

Sentence,  failure  to  follow  prescribed  forms  (J.  A.  G.) . 

Sentence,  inadequate,  oflicer,  mistreating  men  (J.  A.  G.) 

Sentence,  relation  to  finding  and  evidence  (J.  A.  G.). . 

Sentences,  retention  of  soldiers  guilty  of  moral  turpi- 
tude not  favored  (J.  A.  G.) 

Specifications,  necessity  for  precision  in  drawing 
(J.  A.G.).... 

Witnesses,  testimony  of  wife  against  husband,  personal 

abuse  (J.  A.  G.) 

Notice — 

Sufficiency  of,  to  contractor  relative  to  deliverv  of  ar- 
ticles (J.  A.  G.) '. 

Nurses,  Army — 

Allowances  while  on  leave  (J.  A.  G.) 

Cumulative  leave  (J,  A.  G.) 


Year. 

No. 

1917 
1915 

15 
21 

1915 

5 

1914 

8 

1915 
1916 
1915 
1915 

36 

1 

39 

39 

1915 

36 

1915 

36 

1915 

36 

1915 

36 

1915 

39 

1917 

18 

1915 

36 

1915 

36 

1915 

36 

1915 

36 

1917 

18 

1915 

36 

1915 

36 

1916 
1915 
1915 
1915 
1915 

1 
36 
36 
36 
39 

1915 

36 

1915 
1915 
1915 
1915 

39 
39 
36 
39 

1917 

18 

1915 

39 

1915 

39 

1912 

12 

1913 
1913 

1 

1 

Page. 


INDEX. 


739 


Bulletins. 


No.       Page. 


Nurses,  Army — Continued. 

Dying  in  service,  disposition  of  remains  (J.  A.  G.) 

Longevity  pay  (J.  A.  G. ) 

Payment  of  additional  (J.  A.  G.) 

Settlement  for  unused  portion  of  ticket  issued  for  trans- 
portation to  home  (J.  A.  G.) 

When  appointments  take  effect  (Comp.) 

Nurse  Coups — 

Death  gratuity  statute  not  applicable  to  (Comp.) 

Oaths — 

Authority  of  postmasters  to  administer  to  officers'  re- 

tiuns  of  contracts  (J.  A.  G.) 

Chief  clerks,  executive  departments,  designate  clerks 

to  administer  (J.  A.  G.) 

Federal,  National  Guard,  effect  of  taking  (J.  A.  G.).  . . , 
Military  Academy,  French  citizen  as  teacher  of  French 

taking  (J.  A.  G.) 

Observers.     See  Military  observers. 
Office — 

Army  officers,  use  of,  in  reorganizing  Panama  police 

force  (J.  A.  G. ) 

Militia,  acceptance  of  commission  in,  by  Army  officer 

on  active  list  (At.  Gen.) _. . 

Militia,  compatibility  of  Army  officer  on  active  list 

holding  commission  in  (J.  A.  G.) 

Retii-ed  Army  officer  acting  as  superintendent  of  Indian 

schools  (Comp.) -  -  - 

Retired  naval  officer  holding  appointment  under  Civil 

Service  Commission  (At.  Gen.) 

Retiied  officer  receiving  salary  from  Soldiers'  Home 

(J.  A.  G.) 

Officers,  Army — 

For  a  particular  class  of  officers,  see  the  specific  title. 
Absence — 

See  also  Enlisted  men.  absence. 
on  Account  of  misconduct,  stoppage  of  pay  (J.A.G.) 
from  Active  duty  on  account  of  confinement,  for- 
feiture of  pay  (Comp.) 

Awaiting  orders  or  on  leave,  status  of  (J.  A.  G.) 

Enlisted  men  and.  due  to  misconduct,  stoppage  of 

pay  ( J .  A .  G . ) 

Injured  while  on  leave,  medical  treatment  (J.  A.  G) 
on  Leave,  not  entitled  to  forage  allowances  (Comp.). 
on  Leave  in  Philippines,  effect  on   tour  of  duty 

(J.A.G.) 

with  Leave,  pay  during,  and  during  leave  without 

pay  ( C  t .  C  Is . ) ;  -  -  - 

without  Leave,  pay  during,  and  during  leave  with 

pay  (Ct.  Cls.) 

without  Leave,  when  regarded  as  in  line  of  duty 

(J.A.G.) 

Status  of,  while  on  sick  leave  (J.  A.  G.) 

Absorption  of  certain  number  in  consolidated  Q.  M. 

Corps,  full  opinion  (J.  A.  G.) 

Acting  deial  surgeons  are  not  (J.  A.  G.) 

on  Active  list,  acceptance  of  office  in  nulitia(At.  Gen.), 
on  Active  list,  holding  office  in  militia,  compatibility 

(J.  A.  G.) : 

Admission  of  widow  of,  to  Government  Hospital  for  In- 
sane (J.  A.  G.) 

Allowances,  issue  of  shelter  tents  to  (J.  A.  G.) 

Appointment  and  lineal  rank  (J.A.G.) 

Appointment,  commission  issued  in  name  of  deceased 
(At  Gen. ) 


1914 
1914 
1914 

1914 
1914 

1917 


1914 

1912 
1916 

1912 


1912 
1912 
1912 
1912 
1912 
1914 

1914 

1914 
1914 

1914 
1913 
1913 

191  .-J 

1914 

1914 

1913 
1913 

1912 
1915 
1912 

1912 

1912 
1917 
1913 

1912 


50 
25 


39 
20 

18 


52 

20 
47 

20 


20 
12 
12 
20 
20 
20 

33 

50 
4G 


oG 


39  i 


i 
29 

"5 

12 


20 

15 

8 

12 


442 

382 
382 

414 
369 

679 


451 

42 
627 

42 


29 
22 
13 
50 
53 
366 

392 

446 
429 

392 
145 
151 

521 

415 

415 

122 
267 

88 

464 

22 

13 

39 
658 
159 

23 


740 


INDEX. 


Bulletins. 


Officers,  Army — Continued. 

Appointment  of  civilians  as,  age  limitation  (J.  A.  G.) 

Appointment  of.  examination  of  enlisted  men  delayed 
l:)y  error  of  military  authorities  (J.  A.  G.) 

Appointment  of,  not  citizens  of  United  States  (J.  A.G.). 

Appointment  on  same  date,   counting  commissioned 
service  in  Navy  to  determine  rank  (J.  A.  G.) 

Assistant  veterinarian,  credit  for ' '  Government  service ' ' 
(J-A.G.) 

Baggage.     See  Baggage. 

Change  of  station.     See  Change  of  station. 

Change  of  station,  heat  and  light  allowance  to  family 
(J.A.G.) 

Claim  for  private  property  destroyed  by  fire  (Comp.). . . 

Commanding  supply  companies,  whether  on  detached 
duty  (J.  A.  G. ) 

Construction  of  law  as  to  detached  service,  full  opinion 
(J.  A.  G.) 

Debts,  advantage  of  ])ankruptcy  law  to  escape  payment 
of  (J.A.G.) 

Deceased,  commission,  issued  in  name  of  (At.  Gen.) . . . 

Dental  (?'orps,  retirement  on  failure  to  pass  physical  ex- 
amination (J.  A.  G.) 

Detached  duty.     See  also  Detached  service. 

Detached  service,   full  opinion  as  to  law  governing 
(J.  A.  G.) 

Detached  service  law,  garrison  duty  (J.  A.  G.) 

Detached  service,  promotion  while  on  staff  duty  (J.A.G.) 

Detached  service,  squadron  adjutant  (J.  A.  G.) 

Detached  service,  status  when  statute  relating  to,  is  in- 
operative (J.  A.  G.) 

Detailed  as  instructors,  etc.,  of  militia,  transportation 
(J.  A.  G.) 

Detailed  to  attend  associations,  expenses  of  (J.  A.  G.). . . 

Detailed  to  civil  duty  (J.  A.  G.) 

Details.     See  also  Details. 

Discharged,  travel  allowances  (J.  A.  G.) 

Duty  in  command  of  guard,  detached  service  (J.  A.  G.).. 

Eligibility  for  membership  in  Officers'  Resers'e  Corps 
(J.  A.  G.) 

Engaging  in  private  business  (J.  A.  G.) 

Enlisted  men  and,  absence  of,  due  to  misconduct,  stop- 
page of  pay  (J.  A.  G.) 

Enlisted   men  and,   with   their  mounts,   expenses  of, 
while  attending  mounted  competition  (J.  A.  G.) 

Enlisted   men's  pay   entrusted   to,    liability   for   loss 
(J.  A.  G.) 

Examination  for  commission,  enlisted  men,  credit  for 
National  Guard  ser\'ice  (J.  A.  G.) 

Examination,  personal,  for  transfer  (J.  A.  G.) 

Examinations  for  promotion  (J.  A.  G.) 

Examinations  for  promotion,  general  efficiency,  how 
determined  (J.  A.  G.) 

Examinations  of  enlisted  men  for  commissions,  Marine 
Corps  service  (J.  A .  G . ) 

Failure  to  pass  mental  examination  for  promotion,  ex- 
emptions on  reexamination  (J.  A.  G.) 

Field.     See  Field  officers. 

Field,  examination  for  promotion,  Sec.   24,  national- 
defense  act  (J.  A.  G.) 

Foreign  service,  request  for  extension  tour  of   duty 
(J.A.G.) 

Fuel.     See  Fuel. 


191G 


1916 
1918 

57 
28 

633 
599 

1914 

39 

413 

1917 

15 

666 

1916 
1917 

1 

15 

540 
668 

1917 

15 

666 

1912 

22 

54 

1914 
1912 

52 
12 

452 
23 

1917 

1912 
1915 
1915 
1917 

1914 

1912 
1912 
1914 

1914 
1915 

1917 
1915 

1914 

1914 

1915 

1917 
1917 
1913 

1916 

1916 

1915 

1916 
1916 


57 


18 

22 

21 

1 

3 

33 

12 
20 
25 

20 

32 

9 
5 

33 

50 

18 

18 

18 

4 

28 

57 

32 

18 


Page. 


633 


677 

54 
498 
457 
640 

393 

13 

30 

375 

369 
514 

653 
467 

392 

441 

490 

675 
677 
146 

594 

634 

515 

563 
546 


IXDEX. 


741 


Bulletins. 


Officers,  Army — Continued. 

Funiishinp;  allowance  of  heat  and  light  to  family  of,  at 

place  other  than  station  (J.  A.  G.) 

Heat  and  light.     See  Heat  and  light. 

Hire  of  automobile  from,  unauthorized  (J.  A.  G.) , 

Holding  commissions  in  National  Guard  employed  as 

posse  comitatus  (J.  A.  G.) 

Horses.     See  Horses. 

on  Leave,  not  entitled  to  aviation  pay  (( 'omp.) 

on  Leave  or  waiting  orders,  etc.,  status  of  (J.  A.  G.). . . 
Machine-gun    troop    service,    detached    service    law 

(J.  A.  G.) 

Medical  attendance  while  on  leave  of  absence  (J.  A.  G.). 

Mileage.     See  Mileage. 

Militia,  acceptance  of  commission  in,  while  on  active 

list  (At.  Gen.) ... 

Militia,  holding  commission  in,  while  on  active  list, 

compatibility  of  (J.  A.  G.) 

Newly    appointed,    course    of    instruction,    detached 

service  (J.  A.  G.) 

Office.    See  Office. 

Ordered  to  proceed  to  certain  place  for  identification  by 

cixilian  witness  (J.  A.  G.) 

Panama  police  force,  use  of,  in  reorganizing  (J.  A.  G.). 
Pay.     See  Pay  of  officers. 

Payment  of  salaries  abroad,  cost  of  exchange  (Conip.). 
Porto  Rico  Regiment,  eligibility  for  detached  serxdce 

(J.  A.  G.) ,-■-- 

Promotion  in  Quartermaster  Corps  subject  to  examina- 
tion, full  opinion  (J.  A.  G.) 

Promotion  in  Quarterm.aster  Corps,  seniority  rule  (J. 

A.G.) 

Promotion  of,  seniority  (At.  Gen.) 

Promotions,  seniority  rule,  enforcement  of  injunction 

(D.  C.  App.) - 

Purchase  of  en\-elopes  for  sale  to  enlisted  men  and 

(Comp.) 

Quarters.     See  Quarters,  Army. 

Recess  appointments,  effect  of  Senate's  failure  to  con- 
firm (At.  Gen.) ^ 

Recommissioning  ex-officers  as  (J.  A.  G.) 

Recommissioning  persons  formerly  in  service,  permitted 

to  resign  (J.  A.  G.) 

Relative  rank  (J.  A.  G.) •  - 

Repairs  to  property  belonging  to  enlisted  men,  and  used 

by  United  States  (.J.  A.  G.) 

Resignation  of,  during  Ci\il  War,  desertion  (J.  A.  G.).  - . 
Resignation,  shipment  of  private  mounts  (J.  A.  G.). . . . . 
Resignation,  withdrawal  of,  before  acceptance  (J.  A.  G.). 
Retired.    See  Retired  officers. 

Retired,  members  of  courts-martial  (J.  A.  G.) 

Retirement,  selection  of  home  on  (Comp.) ^ 

Second  lieutenant,  Quartermaster  Corps  (pay  clerk),  not 

eligible  for  transfer  to  Infantry  (J.  A .  G . ) 

Second  lieutenants,  order  of  filling  vacancies  in  grade  of 

(sec.  24,  national  defense  act)  (J.  A.  G.) 

Selection  of  home  on  retirement  (Comp.) 

Service  as  captain  of  Infantry  rifle  team,  not  duty  with 

troops  (J.  A.  G.) -. --- 

Serving    as    regimental    adjutant,    detached    service 

(J.  A.  G.) .--•-.-• 

Status  of,  when  statute  relating  to  detached  service  is 
inoperative  (J.  A.  G.) 


Page. 


1914 

50 

1915 

36 

1917 

15 

1915 
1914 

36 
46 

1915 
1916 

39 
8 

1912 

12 

1912 

12 

1915 

21 

1914 
1912 

50 
20 

1915 

9 

1917 

18 

1912 

22 

1916 
1913 

28 
27 

1915 

18 

1914 

33 

1913 
1917 

1 
15 

1916 
1916 

18 
57 

1914 
1915 
1915 
1913 

50 
9 

39 
4 

1917 
1912 

15 
12 

1917 

3 

1916 
1912 

18 
12 

1915 

26 

1916 

18 

1914 

33 

742 


INDEX. 


Bulletins. 


Officers,  Army — Continued. 

Status  while  on  leave  or  awaiting  orders  (J.  A.  G.) 

Temporary  duty.     See  Temporary  duty. 

Transfer  from  line  to  Engineer  Corps  (J.  A .  G. ) 

Transfer  of,  place  in  lineal  list  (sec.  25,  national  defense 

act)  (J.  A.  G.) ...-- 

Transfer,  personal  examination  (J.  A.  G.) 

Transportation.     .See  Transportation. 

Travel  allowances.     See  Travel  allowances. 

Traveling  expenses.     See  Traveling  expenses. 

Use  of,  in  reorganizing  Panama  police  force  (J.  A.  G.~). 

Veterinarians,  scope  of  examination  for  appointment 

(J.  A.  G.) 

Veterinarians,  whether  included  in  Veterinary  Corps 

(J.  A.  G.) 

Officer  of  the  day — 

Detail  of  staff  officer  as,  command  (J.  A.  G.) 

Officers,  National  Guard — 

Age  limitations  (J.  A.  G.) 

Authority  of  gOA'ernor  to  accept  resignation  (J.  A.  G.). . 

Authorized  mounts,  transportation  of  (J.  A.  G.) 

Aviation  service,  increase  pay  for  (J.  A.  G.) 

Commission  expiring  while  in  Federal  service  (J.  A.  G.) 

Detail  of,  to  duty  with  Regular  Army  (J.  A.  G.) 

Discharge  of,  for  physical  disability  (J.  A.  G.) 

Eligibility  for  membership  in  Officers'  Reserve  Corps 

(J.  A.  G.) 

Federal  oath,  effect  of  taking  (J.  A.  G.) 

Holding  elective  State  office  (J.  A.  G.) 

Leaves  of  absence,  entitled  to  (Comp.) 

Legality  of  muster  out  in  Texas  (J.  A.  G.) 

Original  appointments  bv  governor  to  advanced  grades 

(J.  A.  G.) ■ , 

Pay  and  allowances  for,  in  United  States  service  (Comp. ) 

Property  shortage  on  muster  out  (J.  A.  G.) 

Retention  in  Federal  service  after  muster  out  of  organi- 
zation (J.  A.  G.) 

Shortage  of  property  on  muster  out  (J.  A.  G.) 

Transportation  of  private  mounts  on  muster  out  (J.  A.  G.) 
Officers'  Reserve  ('orps — ■ 

Assignment  of  members  as  disbursing  officers  (J.  A.  G.). 

Aviation  pay  for  officers  of  (J.  A.  G.) 

Eligibility  for  membership  in,  officers  and  enlisted  men 

of  Regular  Army  and  National  Guard  (J.  A.  G.) 

Examining  boards,  appointment  of  members  on  (J.  A.  G. 
Members  not  eligible  for  details  for  college  duty  (J.  A.  G . 
Number  of  officers  authorized  in  various  grades  (J.  A.  G. ) 
Organizational  questions — ■ 

Aviation  Section 1 

Dental  Corps i 

Medical  Department Lx    a    p  ■v 

Quartermaster  (Jorps f  (.J  ■  a.  Kx.) 

Signal  Corps 

Veterinarian  Corps j 

Philippine    Scouts,    eligibility    for    appointment    in 

(L  A.  G.) : 

Purchase  of  ordnance  by  members  (J.  A.  G.) 

Purchase  of  subsistence  stores  bv  member  of  on  inactive 

list  ( J.  A .  G. ) '. 

Official  Records — • 

Copies  for  use  in  court  (J.  A.  G.) 

(  opies  of,  to  support  claims  against  Government  (J.  A.  G. 
Old  records,  how  disposed  of  (J.  A.  G.) 


1914 

1917 

191G 
1917 

1912 

1916 

1917 

1915 

1916 
1916 
1916 
1916 
1917 
1916 
1916 

1917 
1916 
1916 
1917 
1917 

1916 
1916 
1917 

1916 
1917 
1916 

1917 
1917 

1917 
1916 
1916 
1916 


1916 


1917 
1917 

1917 

1913 
1917 
1913 


Page. 


46 

18 

18 
18 

20 

28 

15 

32 

39 
34 
57 
34 
3 
28 
28 

9 

47 

39 

3 

15 

34 
34 
15 

47 
15 

47 

3 

18 

9 

57 
39 

28 


34 


9 
3 

9 

23 

9 

18 


429 

676 

565 
677 

29 

599 

666 

514 

617 
609 
636 
610 
643 
594 
595 

653 
627 
617 
647 
664 

610 

613 
663 

628 
663 
629 

645 
671 

653 
637 
617 
599 


611 


654 
643 

654 

230 
654 
213 


INDEX. 


743 


Bulletins. 


Year. 


No.   I   Page. 


Official  Records — Continued. 

Procedure  for  disposition  oi  (J.  A.  G.) 

Production  of  confidential,  in  obedience  to  subpoenas 
(J.  A.  G.) 

Keturns  Office,  attachinj;  confidential  plans   to  con- 
tracts for  file  in  (At.  Gen.) 

Oklahoma — 

Discrimination  against  Army  uniform,  etc.,  prohibited. 
Open  Market — 

See  also  Bids;  Contracts. 

Order  for  supplies  in  excess  of  needs  during  life  of  con- 
tract (Comp.) 

Purchase  of  supplies  in,  without  advertising  (Comp.). . 
Orders — • 

Change  of,  to  allow  commutation  of  quarters  (Comp.). . . 

Executed,  not  revocable  (J.  A.  G.) 

Ordnance — 

Purchase  of,  by  officers.  Medical  Reserve  Corps,  not  iu 

active  duty  (J.  A.  G.) 

Ordnance  Department — 

Details  to,  how  made  (J.  A.  G.) 

Stores,  purchase  of,  by  pay  clerks  (J.  A.  G.) 

Organized  Militia.     /See  Militia. 
Osteopathy — - 

Not  medical  treatment,  expense  for,   not  authorized 

(J.  A.  G.) 

Overpayments — 

Officers  responsible  for  erroneous  entry  of  soldier's  en- 
listment (J.  A.  G.) 

Overtime — 

Claim  for  pay  for  (J.  A.  G.) 

Overtime  Work — 

Compensation  for  (J.  A.  G.) 

Packmasters — 

Mountain  Artillery,  rates  of  pay  (J.  A.  G.) 

Panama  Canal — 

Officers  detailed  to,  baggage  transportation  (J.  A.  G.). . 
Panama-Pacific  International  Exposition — 

Expenses  of  officers  and  enlisted  men,  with  their  mounts, 
attending  mounted  competition  at  (J.  A.  G. ) . . . . . . . 

Use  of  Army  transports  in  transporting  Chinese  exhilnts 

to  (J.  A.  G.) 

Panama  Police  Force— 

Use  of  Army  officers  in  reorganization  of  (J.  A.  G.) 

Parcel  Post — 

Insurance  of  Government  packages  |)j"  ^'  q  \  \[[ 

Limitation  on  use  of  Government  frank  (J.  A.  G.) 

Pardon — 

Power  to  grant  conditional,  and  its  effect  (St.  Ct.) 

to  Qualify  witness  (Fed.  Ct.) 

(Note.— Reversed  by  U.  S.  Supreme  Court.) 

Restoration  of  civil  rights  forfeited  by  desertion  (.1 .  A .  G . 

Restoration  of  lost  files  after  promotion  (J.  A.  G.) 

V^Tien  effective  (Fed.  Ct.) 

Partnership —  .        .  r  ^  n 

Contract  payments,  how  made  after  dissolution  of  (J .  A.u. 
Passenger-Carrying  Vehicles.     See  Motorcycles;    vehi- 
cles. 
Patent  Rights — 

Repairs  to  patented  engine  (J.  A.  G.) 


) 


1910 
1913 
1912 
1917 


1915 
1914 

1914 
1915 


1917 

fl913 

1.1913 

1913 


1915 

1913 
1917 
1914 
1916 
1914 

1914 

1914 

1912 

1913 
1915 
1913 

1914 
1914 

1913 
1914 
1915 

1913 
1914 


8 

8 

12 

18 


9 
43 

25 
14 


2G 

4 
18 
25 
28 
25 

50 
39 
20 


i: 

IS 
8 


20 

25 

23 

1 

14 


548 

160 

21 

686 


476 
424 

386 
479 


643 

116 
144 
124 


505 

149 
674 
380 
593 
376 

441 

414 

20 

197 
489 
164 

374 
390 

230 
326 
486 

230 
349 


744 


INDEX. 


Bulletins. 


Patents — 

of  Employees,  right  of  Government  to  use  (J.  A.  G.) 

Indemnify  contractors  against  infringement  of  (J.  A.  G.) 
Use  of  patented  inventions  by  United  States  (Fed.  Ct. ) . 
Pay— 

Civilian  employees  wliile  training  in  Enlisted  Reserve 

Corps  ( J.  A.  G.) 

of  Clerks,  etc.     See  Clerks  and  employees. 
Computation  of ,  for  services  other  than  personal  (Comp.) 
of  Enlisted  men.     See  Pay  of  enlisted  men. 
of  Enlisted  men,  National  Guard.     See  Pay,  enlisted 

men,  National  Guard, 
of  Officers.    See  Pay  of  officers. 
Pay  and  Allowances — 

Accrued  under  prior  enlistment,  whether  forfeited  by 

desertion  (J.  A.  G.) , . . . 

Army  officer,  fuel  allowances,  use  of,  by  family  (Comp.j 

Aviation  mechanician  on  furlough  (J.  A.  G.) 

Commutation  of  quarters  on  day  of  relief  from  duty 

(Comp.) 

Computation  of  service  of  chaplains  (J.  A.  G.) 

Continuous-ser^dce  pay  of  enlisted  men  (J.  A.  G.) 

Contract  surgeons  (J.  A.  G.) 

Details  to  Philippine  Constabulary  (Comp.) 

Dishonorably  discharged  soldiers  during  suspension  of 

sentence  (Comp.) 

Extra-duty  pay  (Fed.  Ct.) 

Extra-duty   pay   of  soldier   for   ser\'ice   as   telegraph 

operator  (Ct.  Cls.) 

Forage  allowance,  mount  under  size  (Comp.) 

Forage  for  extra  mount  (J.  A.  G.) 

Forage  for  horses  not  owned  by  officer  (Comp.) 

Forage  for  officer  on  leave  of  absence  (J.  A.  G.) 

Foreign  service,  on  certain  items  not  authorized  (Comp.) 

Foreign-ser\ice  pay  (Fed.  Ct.) 

P'oreign-service  pay,  trips  into  Mexico  (Comp.) 

Foreign-service  pay,  when  authorized  (Comp.) 

Foreign  service,  troops  in   Canal   Zone   crossing  into 

Republic  of  Panama  (Comp.) 

Increase  for  aviation  duty  (J.  A.  G.) 

Increase  for  a\'iation  service  (Comp.) 

Liability  of  soldiers  deposit,  indebtedness  to  United 

States  and  post  exchange  (Comp.) 

for  Mounts  while  on  leave  of  absence  udth  half  pay 

(Comp.) '. 

National  Guard,  in  service  of  United  States,  rulings 

(Comp.) 

Officer  in  arrest  and  confinement,  deduction  of  pay 

(J.  A.G.) 

Officer  in  employ  of  foreign  government  (Comp.) 

Officers  of  Medical  Reserve  Corps  (J.  A.  G.) 

Officers  on  special  mission  abroad  (Comp.) 

Persons  drawing  two  salaries,   retired   enlisted   men 

(Comp.) 

Receiving  salaries  from  two  positions  (Comp.) 

Reduction  in  numbers  of  grades  not  reduction  in  pay, 

etc.  (Comp.) \ . 

Reservists,   continuation  of    gunner's  pay  on  call  to 

colors  (J.  A.  G.) 

Reservists  responding  to  call,  excused  because  of  de- 
pendent families  (J.  A.  G.) 

Retired  officers  and  enlisted  men  for  service  in  militia 

(Comp. ) 

Retired  officers,  assigned  to  active  duty  (J.  A.  G.) 


Year. 

No. 

1913 

1 

1912 

12 

1912 

12 

1917 

18 

1916 

28 

1914 

50 

1912 

12 

1916 

18 

1913 

17 

1913 

35 

1916 

8 

1913 

38 

1913 

23 

1914 

52 

1916 

8 

1914 

1 

1914 

5 

1913 

13 

1913 

13 

1913 

23 

1915 

21 

1914 

25 

1916 

18 

1913 

38 

1916 

34 

1913 

18 

1913 

17 

1916 

13 

1916 

1 

1916 

34 

1916 

13 

1913 

18 

1913 

38 

1913 

31 

1916 

18 

1917 

9 

1916 

28 

1916 

47 

1916 

47 

1913 

27 

1916 

28 

Pago. 


124 

7 

25 


675 
602 


440 

19 

578 

203 
304 
547 
316 
238 

454 
554 

330 
337 
181 
185 
228 
502 
390 
585 
323 

612 
210 
199 

559 

540 

013 

557 
221 
320 
299 

586 
656 

603 

621 

621 

262 
600 


INDEX. 


745 


Bulletins. 


Pay  and  Allowances — Continued. 

Retired  officers  on  active  duty,  forage  (J.  A.  G.) 

Soldier  absent  due  to  misconduct  (Comp.) 

Pay  Check— 

Stolen,  effect  of  indorsement  (J.  A.  G.) 

Pay  Clerks — 

Assignment  of  retired,  to  active  duty  (J.  A.  G.) 

Change  of  status  under  national  defense  act  (J.  A.  G.).  . . 

Commissioned    second    lieutenant    in    Quartermaster 
Corps,  not  eligible  for  transfer  to  Infantry  (J.  A.  G.). . 

Commutation  of  quarters  at  post  (J.  A.  G.) 

Foreign  service,  tour  of  duty  (J.  A.  G.) 

Heat  and  light,  commutation  of  (J.  A.  G.) 

Heat  and  light  for  (J.  A.  G.) 

at  Military  Academy,  leave  of  absence  (J.  A.  G.) 

Official  status  in  Army  (J.  A.  G.) 

Public  quarters  for  (J.  A.  G.) 

Reimbursement  for  hii-e  of  quarters  where  not  fur- 
nished in  kind  (Comp.) 

Retirement  of  (J.  A.  G.) 

Service  with  troops  (J.  A.  G.) 

Pay,  Continuous-Service.    See  Continuous-service  pay. 
Payments — - 

For  days  of  February,  computation  of  (Comp.) 

For  31st  of  month  (Comp.) 

National  Guard,  for  State  duty  under  call  of  governor 

(J.  A.  G.) 

Pay  of  Enlisted  Men — 

See  also  Enlisted  men. 

Allotment  of,  by  retired  enlisted  men  (Comp.) 

Allotment  of,  when  forfeited  (Comp.) 

Coast  Artillery  band  (J.  A.  G.) 

Continuous-service,  discharged  to  accept  commission  in 
National  Guard  (J.  A.  G. ) 

Continuous-service,  discharged  to  accept  commission  in 
Officers'  Reserve  Corps  (Comp.) 

ContiBuous-service  pay  (J.  A.  G.) 

Continuous-service  pay,  antedating  enlistment  (J.  A.  G.) 

Continuous-service  pay,  application  for  reenlistment 
made  within  time  limit  but  completed  after  (Comp.^. 

Continuous-service  pay,  purchase  of  discharge  (Comp.j. 

Continuous-service  pay,  reenlistment  after  |  /(^Q^^p  \ 
completed  enlistment  and  subsequent  dis-  \\-r   i^  q  ]' 
honorable  dischai'ge -  J  ^ 

Continuous-service  pay,  service  as  civilian  in  Quarter- 
master Corps  not  counted  (J.  A.  G.) 

Convicted  of  desertion,  sentence  disapproved,  stoppage 
to  pay  reward  and  transportation  (J.  A.  G.) 

Deduction  for  absence.     See  Enlisted  men;  Absence._ 

Deduction,  Army  reservist  called  to  colors,  absence  in 
hospital  (J.  A.  G.) - •  -  - 

Deduction  of,  for  absence  in  prior  enlistment  (J.  A.  G.j. 

Detention  of,  in  Ueu  of  forfeiture  (J.  A.  G.) 

Extra-duty  (Fed.  Ct.) 

Extra-duty  not  forfeited  by  sentence  (Comp.). 

Foreign  service,  on  certain  items  not  authorized  (Comp. ) . 

Foreign  service,  troops  in  Canal  Zone  crossing  into  Re- 
public of  Panama  (Comp.) 

Forfeited   by  sentence   of   comt-martial,   when   com- 
mences to  run  (Comp.) ,- 

Forfeiture  of,   court-martial,    effect  on   certain  items 
(Comp.) -^ , 

Future,  forfeitui-e  of,  change  of  rank  (Comp.) 


1915 
1913 

1913 

1912 
1916 

1917 
1913 
1915 
1915 
1915 
1913 
1913 
1913 

1914 
1913 

1914 


1914 
1914 

1917 


Page. 


1914 
1917 
1916 

43 

3 

39 

1916 

28 

1916 
f  1913 
\  1916 

1915 

47 

35 

8 

1 

1914 
1912 

33 
12 

1914 
1914 

33 
39 

1913 

1 

1915 

30 

1916 
1915 
1915 
1916 
1915 
1915 

34 
18 
21 
8 
18 
21 

1916 
f  1914 
t  1915 

34 

33 

9 

1915 
1915 

36 
18 

26 
29 


20 
18 

3 
1 

21 

21 

5 

17 

1 

4 

43 

1 

14 


20 
23 

18 


746 


INDEX. 


Bulletins. 


Pay  op  Enlisted  Men — Continued. 

Loss  of,  entrusted  to  officer  (J.  A.  G.) 

Mess  sergeants,  national  defense  act  (Comp.) _. . . 

in  Military  confinement,  subject  to  jurisdiction  of  civil 

authorities  (J.  A.  G. ) 

Privates,  Medical  Department  ( J.  A.  G. ) 

Privates,  Medical  Department,  under  national  defense 

act  (Comp.) 

Rates  of,  Mountain  Artillery  (J.  A.  G.) 

Reimbursement  of  amount  stopped  to  pay  reward  for 

apprehension  (J.  A.  G.) 

Reenlistment  pay,  computation  of  (Comp.) 

Retired,  upon  enlistment  in  National  Guard  (Comp.)--  - 

for  Service  as  telegraph  operator  (Ct.  Cls.) 

for  Service  at  Military  Academy  (Comp.) 

Stoppage   during  absence   to  test   natm"e   of   disease 

(J.  A.  G.) 

Stoppage  for  reward,  desertion  (J.  A.  G.). 

Stoppage,  legality  of  sentence  authorizing,  to  satisfy 

indebtedness  to  post  exchange  (Comp.) 

Travel   pay,   deduction   of  indebtedness  due   United 

States  from  (Comp.) 

Pay  of  Enlisted  Men,  National  Guard — 
See  also  Pay  of  enlisted  men. 

Additional  for  qualification  as  gunners 1 1^;^^^'    y 

Rejected  by  State  authorities  before  mut^ter-in  (Comp.). 
Pay  of  Officers — 

See  also  Officers,  Army. 

on  A-viation  duty,  leave  of  absence  (Comp.) 

A\'iation  pay  for  Officers'  Reserve  Corps  (J.  A.  G.) 

Deduction  of,  on  arrest  and  confinement  (J.  A.  G.).  .  .  - 

During  absence  without  leave,  and  leave  without  pax 
(Ct.  Cls .) ■- . 

During  leave  of  absence,  in  excess  of  statutory  allow- 
ance (Fed.  Ct.) 

Foreign  service,  officers  serving  on ,  by  special  authoriza- 
tion of  Congress  (J.  A.  G.) 

Foreign  service,  on  certain  items  not  authorized  (Comp.) 

Foreign  ser\dce,  temporary  and  permanent  legislation 
(Fed.  Ct.) 

Foreign  ser\ice,  trips  into  Mexico  (Comp.) 

Foreign  ser^^.ce,  troops  in  Canal  Zone  crossing  into  Re- 
public of  Panama  (Comp.) 

Forfeiture  because  of  absence  from  active  duty  on  ac- 
coimt  of  confinement  (Comp.) 

Longe^'ity,  computation  of  time,  Medical  Reserve  Offi- 
cers (J.  A.  G.) 

Organized  Militia  while  attending  encampment,  rank 
above  commission  (J.  A.  G.) 

Serving  abroad  by  special  authorization  of  Congres.s 
(J.  A.G.) 

Ser\'ing  abroad,  money  exchange,  appropriation  (Comp.) 
Pay  Rolls — 

Certification  of,  relation  to  muster  rolls  (J.  A.  G.) 

Penalty  Envelopes.    See  Envelopes. 
Penitentiaries — 

Confin^mentof  military  prisoners  in  Canal  Zone  (J. A.G.) 
Pennsylvania — 

Discrimination  against  Army  uniform,  etc.,  prohibited. 
Pensions — 

for  Physical  disability,  eligibility  of  persons  in  receipt 

of,  for  service  in  Militia  (J.  A.  G.) 

Per  Diem  Expenses.    See  Traveling  expenses. 


1915 
1916 

1917 
1916 

1916 
1916 

1915 
1912 
1917 
1914 
1912 

1917 
1915 
1913 
1914 

1912 


1916 
1916 
1917 


1915 
1917 
1916 

1914 

1916 

1912 
1915 

1914 
1916 

1916 

1914 

J  91 5 

1914 

1912 
1915 

1913 

1912 
1917 

1914 


Page. 


18 
18 

3 

57 

18 

28 

30 
12 
15 
1 
12 

15 

36 

8 

33 

12 


39 

28 
3 


36 
18 
13 

39 

8 

12 
21 

25 
18 

34 

50 

36 

43 

12 
30 

8 

20 
18 

50 


490 

584 

642 
635 

583 
593 

508 

20 

668 

330 

18 

658 
519 
167 
402 

20 


617 
604 
647 


523 
671 
557 

415 

555 

14 
502 

390 

585 

612 

446 

520 

419 

14 
511 

161 

36 

686 

443 


INDEX. 


747 


Bulletins. 

Year. 

Xo. 

PUL'.-. 

Pkkfumeries  and  Cosmetics — 

Sales    by    po^t    exchanges,    internal-revenue    t-tamj>s 

(J.  A.'G.) 

1915 

1 

4r»Q 

Periodicals.     See  subscriptions  to  jx-riodic-als. 

^*JO 

Personal  Examination.     See  Examination. 

Personal  Injuries.     -See  Injuries. 

Personal  Property — 

Acceptance  by  United  States  of  donation  of  (J.  A.  G.). . 

1912 

12 

15 

Claim  for  loss  or  damage,  eyidenco  required  (Comp.).. 

19IG 

18 

5S2 

Philippine  Constabulary— 

See  also  Philippine  Scouts. 

Detail  of  officers  to,  detached  serA-ice  (J.  A.  G.) 

1914 

25 

377 

T^  .   M    .                  J    11                r(('omp.) 

1913 
1913 

23 
27 

238 

Details  to,  pay  and  allowances-^ )  r   Y  • ;;  : 

249 

Officers  detailed  to,  status  (Comp.) 

1913 

35 

310 

See  also  Philippine  Constabulary;  Philippine  Scouts. 

Customs  stamp  tax,  exemption  of  Goyernment  property 

from  (At.  Gen.) 

1912 

12 

23 

Tax  on  jute  bags,  Quartermaster's  Department  (Comp.). 

1913 

1 

135 

Philippine  Scouts — 

See  also  Philippine  Constabulary. 

Appointment  of  officers,  not  citizens  of  United  States 

(J.  A.  G.) 

19 1() 

28 

599 

Court-martial  of  officer,  composition  of  court  (Sup.  Ct. 

A.  1.1 

P.  I.) 

1913 

31 

302 

Eligibility  for  appointment  in  Officers'  Reserye  Corps 

(J.  A.  G.)....: 

1917 

9 

654 

Officers  of,  detached  for  other  duty,  pay  (Comp.) 

1914 

20 

371 

Retirement  of  officers  (J.  A.  G.) 

1914 

1 

326 

Service  in,  when  counted  for  retirement  (J.  A.  G.) 

1913 

38 

321 

Service  with,  detached  service  (J.  A.  G.) 

1916 

47 

625 

Physical  Examination.     See  Examination. 

Piece  Work— 

Computation   of  holiday   pay  for  civilian  employees 

(Comp.) 

1917 

15 

668 

Pleas — 

Duty  of  president  of  court-martial,  respecting  (J.  A.  G.). 

191(3 

1 

543 

of  (juilty,  erroneous  information  by  court  respecting 

punishment  (J  A   G . ) 

1915 

36 

529 

of  Guilty,  taking  evidence  not  precluded  by,  degree  of 

punishment  (J.  A.  G.) : 

1915 

36 

530 

Pledge  or  Pawn — 

Corroboration  in  case  of  confession  of  receiving  property 

in  ( Fed  Ct. ) '-■ 

1917 

18 

681 

Plumbing — 

Public  buildings,  cost  of.  chargeable  to  what  appropria- 

tion (Comp  )                        

1912 

12 

17 

Pool  Tables — ■ 

Company,  whether   constitute    Government    agencies 

(J.  A.G.) 

1912 

20 

38 

Port  Charges — 

Vessels  liable  to  (U   S   Sup   Ct  )                

1917 

9 

657 

T    V'OOt/ Aij     Xi-iAjKJ  X\y      LiKJ     \     \^'    ,      r— '  •      KJ  lit'.       V_ 'I;,    /••»»■•••-•    •    •    •    ■    -    -    •    •    ■    •    •    •    • 

Porto  Rico^ — 

Public  lands,  harbor  areas  (J.  A.  G.) 

1913 

31 

296 

Porto  Rico  Regiment — 

Eligibility  of  officers  for  detached  service  (J.  A.  G.) 

1917 

18 

678 

Appointment  of  officers,  not  citizens  of  United  States 

(J.  A.  G.) 

1916 

28 

599 

Examinations  for  advancement  by  promotion,  sec.  21, 

1916 

18 

562 

Posse  Comitatus — 

Regular  officers  in  National  Gruard  employed  as  (J.  A.  G.) 

1917 

15 

665 

748 


INDEX. 


Bulletins. 


Postage.     See  Envelopes;  Mail  matter. 
Post  Exchanges — ■ 

See.  also  Government  agencies. 

Disputes  between  exchange  and  creditors,  settlement 
of  (J.  A.  G.) 

Distribution  of  dividends,  Corps  of  Engineers  (J.  A.  G.). 

Funds,   loss  through  negligence   of   exchange    officer 
(J.A.G) 

Internal -re  venue  stamps,  sales  of  perfumeries  and  cos- 
metic's (J.  A.  G.) 

Internal  revenue  tax,  sales  of  tobacco  (J.  A.  G.) 

Lease  of  part  of  military  reservations  for  benefit  (J.  A.  G.) 

Legality  of  sentence  of  court-martial  authorizing  stop- 
page of  pay  to  satisfy  indebtedness  to  (Oomp.) 

Military  Academy,  engineer  detachment,  distribution 
of  profits  (J.  A.  G.) _. 

Participation  in  profits  on  withdrawal  of  members  from 
(J.A.G.) 

Power  to  contract  with  Government  for  electric  current 
(J.A.G.) 

Responsibility  for  money  collected  at  pay  table  due 
from  enlisted  men  to  (J.  A.  G.) 

Retired  officer  not  eligible  for  duty  as  exchange  officer 
(J.A.G.) 

Shortage  in  accounts,  responsibility  for  (J.  A.  G.) 

Post  Laundries — 

Use  of  penalty  envelopes  by  (J.  A.  G.) 

Postmasters — 

Authority  to  administer  oaths  to  officers'  returns  of  con- 
tracts (J.  A.  G.) 

Power  of  Attorney — 

Contract  payments  made  to  holder  of  (J.  A.  G.) 

Presents — 

from  Employees  to  their  official  superiors  (J.  A.  G.) 

President  op  the  United  States — • 

Army  retiring  board,  action  on  report  of  (J.  A.  G.) — . 

Authority  to  call  out  and  send  militia  inito  foreign 
country  (J.  A.  G.) _- 

Authority  to  send  militia  outside  of  United  States  (At. 
Gen.) 

Calling  forth  National  Guard  to  protect  ammunition 
plants  (J.  A.  G.) 

Calling  for  the  National  Guard  to  protect  railroads  (J.A.G. ) 

(J.    A.    G.) ; - 

Permission  from,  to  land  foreign  cable  in  navigable 
waters  of  United  States  (J.  A.  G.) -  -  - 

Power  over  militai-v  reser-vations  same  as  other  public 

land  (J.  A.  G.). .  .^ 

Prisoners — 

See  also  Garrison  prisoners;  General  prisonei's. 

Expenses  of  officer  and  guard  in  producing,  in  response 
to  writ  of  habeas  corpus  (J.  A.  G.) 

Introducing  money  in  prison  room,  confiscation  illegal 
(J.A.G.) 

^lilitary,    confinement   in    Canal    Zone    Penitentiary 
(J.A.G.) 

Military  prisoner  held  by  civil   authority,   expense 
(J.A.G.) .--- 

Pay  under  suspended  sentence  of  dishonorable  dis- 
charge (Comp.) 

Under  suspended  sentence  of  dishonoral)le  discharge, 

designation  of  (J.  A.  G.) 

Private  Business — 


Officers    and 
(J.A.G.).. 


noncommissioned    officers    engaging    in 


1917 
1915 

1916 

1915 
1915 
1913 

1914 

1912 

1912 

1913 

1912 

1913 
1915 

1912 

1914 
1914 
1912 
1912 
1912 
1912 
1917 
1917 
1914 
1912 

1914 
1915 
1912 
1913 
1914 
1914 

1915 


Pas;e. 


9 

18 

18 

1 

1 

35 

33 

20 

20 

23 

12 

17 
9 

20 

52 
8 
12 
12 
12 
12 
18 
18 
39 
12 

52 
21 
20 
31 
52 
46 


655 
491 

579 

459 
459 
306 

402 
40 
43 

231 

14 

195 
474 

43 

451 
345 

10 
3 

14 

23 
676 
676 
412 

12 

451 

500 

36 

295 
454 
430 

467 


INDEX. 


749 


Bulletins. 


Private  Hospitals.     See  Hospitals. 
Private  Property — ■ 

Claim  for  damage  by  soldiers  ( J.  A .  G.) 

Claim  for  use  of  in  public  service  ( J.  A .  G.) 

Claim  of  officer  for  loss  of  horse  (Comp.) 

Destruction  of  liquors  by  military  force  (St.  Ct.) 

Disposition  of  ammunition  taken  under  martial  law 
(J.  A.G.) 

Donations  to  the  Government  (J.  A .  G.) 

Loss  due  to  Artillery  practice,  articles  necessary  for  use 
in  quarters  (J.  A.  G.) 

Loss  of  civilian  clothing  by  enlis^ted  man  (J.  A.  G.) 

Loss  of  clothing  at  post  laundry  (J.  A.  G.) 

Loss  of,  delay,  in  presenting  claim  (Comp.) 

Loss  of,  in  lighting  fire  (J.  A.  G.) 

Loss  of  in  military  service  (Ct.  Cls.) 

Of  Officers  and  enlisted  men,  use  of,  by  Government 
(J.  A.G.) 

of  Officer  destroyed  by  fire,  claim  for  (Comp.) 

Reimbursement  of  officer  for  loss  of  (Comp.) 

Responsibility  for  destruction  of,  during  enforcement 
of  martial  law  ( J .  A .  G . ) 

Retired  soldier  who  died  in  Army  hospital,  disposition 
of  (J.  A.G.) 

Shipment  or  disposition  of  effects  of  insane  soldier  after 
discharge  (J.  A.  G.) 

Tortious  acts  of  soldiers,  liability  (J.  A.  G.) 

Valueless  effects  of  deceased  soldiers  (J.  A.  G.) 

Proceeds  of  Sales.     See  Sales. 
Profits — 

Post  exchange,  participation  in,  on  withdrawal  of  mem- 
bers from  (J.  A.  G.) 

Promotions — 

Effect  on  lost  files  (J.  A.  G.) 

Enlisted  men,  grade  of  second  lieutenant  (J.  A.  Ct.) 

Examination  of  officers  for  (J.  A.  G.) 

Examination  of  officers  for,  general  efficiency  (J.  A.  G.)  . 

Medical    Corps,    service    under    prior    appointment 
(J.  A.G.) 

Officer  of  Quartermaster  Corps  subject  to  examination 
(J.  A.G.) .---- 

Officers,  failure  to  pass  mental  examination,  exemp- 
tions on  reexamination  (J.  A.  G.) 

Officers  while  on  staff  duty,  detached  service  (J.  A.  G.) . 

Quartermaster  Corps,  seniority  rule  (J.  A.  G.) 

Rule  of  seniority  (At.  Gen.) 

Seniority  rule,  injunction  to  compel  (D.  C.  App.) 

Temporary,    civilian    employees,    when    prohibited 

(Comp.) 

Property — 

Private.     See  Private  property. 

Public.     See  Public  property. 

Real.     See  Land. 
Proposals  and  Acceptances — 

See  also  Contracts. 

Fixing  transportation  rates,  termination  of  (Comp.)...... 

Liability  of  contractors  for  failure  to^deliver  supplies 

under  agreement  represented  by  (Comp.) 

Publication — 

of  ('Ompilation  by  Government  clerk  (J.  A.  G.) 

of  Sentence  of  courts-martial.     See  Courts-martial. 
Publications — 

Expenses  of  distribution  by  executive  departments 

(J.  A.G.) 


Page. 


191G 
1917 
1913 
1917 

191G 
1914 

1914 
1916 
1914 
191;? 
1914 
1917 

1914 
1917 
1913 

1914 

1914 

1914 
1914 
1913 


1912 

1914 
191(3 
1913 
1916 

1912 

1912 

1915 
1915 
1916 
1913 
1915 

1915 


1915 
1914 
1913 

1912 


47 

18 

8 

15 

18 
25 

43 
13 
20 
18 
\ 
18 

50 
15 
35 

33 

46 

50 
20 

27 


20 

1 
13 

4 
28 

20 

22 

32 
1 

28 
27 
18 

32 


1 

52 

1 

20 


622 

672 
167 
669 

579 
379 

420 

557 
366 
222 
325 
680 

444 
668 
312 

396 

431 

443 
366 
253 


43 

326 

557 
146 
594 

44 

84 

515 
457 
599 
265 
495 

516 


462 
453 
110 

44 


750 


INDEX. 


Bulletins. 


Public  Buildings — 

Contracts,     architects     employed      under     authority 

(J.  A.  G.) -■ ■- . 

Heating  and  plumbing  fixtures,  appropriation  (Comp.). 

Heating  apparatus,  appropriation  (Comp.) 

Leased  by  one  department  to  another,  cost  of  repairs, 

etc.  (J.  A.  G.) 

Payment  for  telephone  service  in,  when  used  as  private 

residence  (Comp. ) 

Plumbing,  cost  charged  to  what  appropriation  (Comp.). 

Restrictions  on  cost  of  (J.  A.  G.) 

Public  Documents — 

Expenses  of  public  distribution  (J.  A.  G.) 

Public  Lands — 

Harbor  areas,  Porto  Rico  (J.  A.  G.) 

I^eased  by  Secretary  of  War  (J.  A .  G. ) 

Power  of  President  over  military  reservations  same  as 

other  (J.  A.  G.) '. 

Public  Moneys — 

Receipts  from  sale  of   worn-out   prison  clothing,  etc. 

(J.  A.  G.) 

Public  Property — 

Accountability  of  officers  for  supplies  (Fed.  Ct.) 

Appropriation  of,  to  private  use  (Fed.  Ct.) 

Boundary    of    military    reservation    determined    by 

Boundary  Commission,  res  judicata  (J.  A.  G.) 

Certificate  as  to  destruction  of  (J.  A .  G. ) 

Chartering  Army  transport  to  private  parties  (J.  A.  G.) . . 

Claim  for  caring  for  and  returning  lost  (J.  A.  G.) 

Damage  resuliing  from  defective  State  bridge  (J.  A.  G.). 

Damage  to,  admiralty  jurisdiction  (Fed.  Ct.) 

Damage  to,  on  account  of  neglect  (J.  A.  G.) 

Deduction   on   settlement   with   common    carrier   on 

account  of  prior  shipment  (Comp. ) 

Disposition  of  horse  injured  by  common  carrier  during 

shipment  (J.  A.  G.) 

Disposition  of  unserviceable  property  (J.  A.  G.) 

Donation  of  personal  property  to  United  States  (J.  A.  G.). 

Employment  of  land-value  expert  (J.  A.  G.) 

Exchange  of,  replacing  automobile  tires  on  failure  to 

make  guaranteed  mileage  ( J .  A .  G. ) 

Issued  to  militia,  accountability  (J.  A.  G.) 

Lease  of,  acceptance  of  highest  bid  (J.  A.  G.) 

License  to  take  water  from  Government  main  (J.  A.  G.). 

Loan  of,  by  Secretary  of  War  (J.  A.  G.) 

Loss  by  fire  at  Antietam  battlefield,  responsibility  for 

(J.  A.  G.) 

Loss  by  fire  in  railroad  depot  (J.  A.  G.) 

Loss  of,  at  sea,  liability  of  shipowner,  Harter  Act,  27 
Stat.,  445  (J.  A.  G.) 

Measures  for  protection  of,  in  emergency  (J.  A.  G.) 

Memorandum  receipt  for,  in  Quartermaster  Corps 
(J.A.G.) 

Militia,  accoiuiting  for  tent  equipage  loaned  by  gov- 
ernor for  relief  of  flood  sufferers  (J.  A.  G.) 

Militia  rifle  ranges,  rental  of  (J.  A.  G.) 

National  Guard  officers,  shortage  on  muster  out  (J.  A.  G.) 

Organized  Militia  officers,  shortage  on  muster  out 
( J .  A .  G . ) 

Repair  of  street  in  city  leading  to  military  reservation 
(J.  A.G.) 

Reward  for  recovery  of,  lost  (J.  A.  G.) 


Year. 

No. 

1912 
19b3 
1915 

20 
27 
14 

1912 

20 

1912 
1912 
1913 

20 
12 
23 

1912 

20 

1913 
1913 

31 

1 

1912 

12 

1916 

18 

1914 
1917 

5 
18 

1912 
1913 
1912 
1914 
1913 
1917 
1913 

12 

18 

20 

43 

4 

9 

8 

1914 

50 

1914 
1913 
1912 
1913 

39 
18 
12 
23 

1914 
1914 
1917 
1913 
1913 

52 
20 
15 
35 
35 

1913 
/  1913 
\  1913 

29 
29 
31 

1917 
1913 

9 

1 

1913 

1 

1912 
1913 
1917 

12 
23 
15 

1917 

15 

1913 
1915 

8 
14 

Page. 


INDEX. 


751 


Bulletins. 


Public  Property — Continued. 

Sale  of  burial  outtits  to  officers'  relatives  (J.  A.  G.) 

Sale  of  medical  equipment  to  Red  Cross  (J.  A.  G.) 

■Sale  of  sewage  from  military  reservations  (J.  A.  G.) 

Sale  of  subsistence  stores  (J.  A.  G.) 

Sale  of,  to  educational  institutions,  cost  to  students 
(JAG) 

Sale  of,  to  naval  officers  ( J .  A .  G . ) 

Sale  of  worn-out  prison  clothing,  etc.  (J.  A.  G.) 

Sale  to  attendants  at  training  camps  (J.  A.  G.) 

Shipping  officer  responsible  for,  lost  (Comp.) 

Theft  of  blanket  by  one  soldier  from  another,  article  of 
war  violated  (J.  A.  G.) 

Title  to  clothing  furnished  to  soldiers  (Tr.  Ct.  P.  I.). . . 

Title  to  land  donated  where  deed  was  not  recorded 
(J.  A.G.) 

Title  to  military  reservations  conveyed  without  cost  to 
United  States  (J.  A.  G.) '. 

Transfer  of,  not  needed  for  purpose  purchased,  appro- 
priation (J.  A.  G.) 

Transportation,  immigrant  rate,  when  applicable 
(Comp.) 

Use  for  private  purposes  (J.  A.  G.) 

Use  of  Government  vehicles  for  hire  (J.  A.  G.) 

When  land  title  vests  in  United  States  (J.  A.  G.) 

Public  Service — 

Claim  for  private  property  used  in  (J.  A.  G.) 

Public  Works — 

Contracts,  separate  agreements  under  sec.  3717,  Re- 
vised Statutes  (J.  A.  G.) 

Eight-hour  law,  construction  of  Government  dredge 
(J.  A.G.) 

Leasing  of  water  power  at  (At.  Gen.) 

Preference  to  American  laborers  in  employment  on 
(J  A.G.) 

Secretary  of  War  may  grant  temporary  use  (J.  A.  G.). . 
Punishment — 

/See  afeo  Courts-martial ;  Discipline;  Sentences. 

Additional,  to  sentence  imposed  by  court-martial,  con- 
duct regulations  (J.  A .  G.) 

Courts-martial,  combining  separate  offenses  to  make 
offense  of  grand  larceny^  (J.  A.  G.) 

Discipline,  reducing  soldiers  from  fii'st-class  privates 

(J.  A.G.) -.■.•---•: 

Enlisted  men  awaiting  trial  (J.  A.  G.) 

Remission  of,  reduction  in  files,  promotion  (J.  A.  G.) 

Restoration  of  lost  files  aft^r  promotion  (J.  A.  G.) 

Purchase  of  Army  Supplies — 

Contracts  for,  in  absence  of  approi^riations  (Comp.) 

Purchase  of  Supplies — 

Exchange  of  typewriters,  etc.  (J.  A.  G.) 

Purchases — 

Abroad,  material  for  fortifications  (J.  A.  G.) 

of  Discharge.    See  Discharge. 

of  Envelopes.    See  Envelopes. 

of  Supplies  in  general.     See  Supplies. 
Quarantine — 

on  Military  reservations  (J.  A.  G.) 

Quartermaster  Corps — 

Absorption  of  certain  number  of  officers  in  consolidated, 
full  opinion  (J.  A.  G. ) -  -  - 

Accountability  and  responsibility  for  property  (,J.  A.  G.). 


1913 
1912 
1913 
1914 

1915 
1913 
191G 
191G 
1916 

1912 
1913 

1912 

1912 

1915 

1915 
1916 
1913 
1913 

1917 

1912 

1915 
1913 

1914 
1913 


1914 

1914 

1912 
1913 
1913 
1914 

1917 

1917 

1913 


1913 


1912 
1913 


27 
12 
17 
20 

14 
13 
18 
47 
8 

20 
23 

12 

12 

18 

32 

57 
27 
29 

18 


20 

21 
23 

39 


46 

39 

12 

23 

13 

1 

IS 

18 

35 


31 


22 


Page. 


752 


INDEX. 


Bulletins. 


Quartermaster  Corps — Continued. 

Change  in  statutory  requirements  as  to  formal  contracts 

under  (J.  A.  G.) 

Consolidation  of  certain  departments  into,  full  opinion 

on  law  authorizing  (J.  A.  G. ) 

Consolidation  of  several  departments  into  (J.  A.  G.) 

Details  of  officers  (J.  A.  G. ) 

Details  of  officers  to,  under  act  of  Aug.  24,  1912  (J.  A.  G.) 

Enlisted  men  on  extra  duty  in  (J.  A.  G.) 

Enlisted  men  substituted   for  civilians,   full  opinion 

(J.  A.  G.) 

Issue  of  fuel  in  kind  to  civilian  employees  of  (J.  A.  G.). . 
Living  expenses  of  civilian  clerks  on  temporary  duty 

(Ct.  Cls.) 

Officers,  who  may  be  detailed  for  service  in  (J.  A.  G.)-  -  - 
Organization  of,  act  of  Aug.  24,  1912,  date  when  effec- 
tive (J.  A.  G.) 

Organization  of,  act  of  Aug.  24,  1912,  detail  of  officer 

(J.  A.  G. ) 

Pay  clerks  commissioned  as  second  lieutenants  in,  not 

eligible  for  transfer  to  Infantry  (J.  A.  G.) 

Pay  of  civilian  clerk  during  absence  without  authority 

(Comp.) 

Promotions  in  (J.  A.  G.) 

Promotions  in,  seniority  rule  (J.  A.  G.) 

Promotions  in   subject  to  examination,    fiill   opinion 

(J.  A.  G. ) 

Quartermaster  sergeants,  filling  vacancies  in,  full  opin- 
ion (J.  A.  G.) 

Quartermaster  sergeants,  how  selected  (J.  A.  G.) 

Recommissioning  officers  of  constituted  departments 

comprising  (J.  A.  G.) 

Repairs  to  lighthouse  tender  damaged  by  vessel   of 

(Comp. ) 

Service  in,  as  ciAdlian  not  counted  as  enlisted  service 

for  longe-sdty  or  retirement  (J.  A.  G.) 

Vacancies  in,  how  filled  (J.  A.  G.) 

QU.\RTERMASTER    GENERAL — ■ 

Change  in  statutory  requirements  as  to  formal  contracts 

under  ( J.  A .  G. ) 

Quartermasters— 

in  Charge  of  posts  temporarily  vacated  (J.  A.  G.) 

Quartermaster's  Department — 

Absorption  of  certain  officers  in  consolidated  Quarter- 
master Corps,  full  opinion  (J.  A.  G. ) 

Civilian  teamsters  to  replace  enlisted  men  (J.  A.  G. ) 

Traveling  expenses  of  civilian  employees  (Comp. ) 

Quarterm.\ster  Sergeants — 

Duties  of  (J.  A.  G.) 

How  selected  (J.  A.  G.) 

Pay  and  allowances  (J.  A.  G. ) 

Quartermaster  Corps  filling  vacancies  (J.  A.  G.) 

Quartermaster  Stores — 

Proceeds  of  sale  of  unsuitable  (Comp. ) , 

Quartermaster  Supplies — • 

Sale  of,  to  naval  officers  (J.  A.  G.) 

Supplied  to  Marines  while  serving  with  Army,  reim- 
bursement (J.  A.  G.) 

Quarters,  Army — 

See  also  Barracks  and  quarters;  Fuel;  Heat  and  Light. 

Allowances  to  officers  on  temporary  duty  (Comp.) 

Articles  necessary  for  use  in,  loss  of  private  property  due 
to  Artillery  i)ractice  (J.  A.  G. ) 


Year. 

No. 

1915 

9 

1912 
1913 
1913 
1912 
1913 

22 
1 
1 

20 

4 

1912 
1914 

22 

43 

1914 
1913 

46 

1 

1912 

20 

1912 

20 

1917 

3 

1914 
1913 
1916 

46 
1 

28 

1912 

.  22 

1912 
1913 

22 
1 

1914 

33 

1914 

46 

1913 
1913 

1 
1 

1915 

9 

1914 

25 

1912 
1913 
1914 

22 
35 
14 

1913 

1913 

1913 

/  1912 

1  1913 

1 

1 

1 

22 

1 

1917 

15 

1913 

13 

1914 

43 

1914 

5 

1914 

43 

Page. 


471 

88 
126 
128 

45 
145 

93 

418 

437 
126 

45 

45 

644 

432 
129 
599 

84 

91 
130 

399 

435 

128 
129 

471 
376 


88 
308 
360 

126 
130 
128 
91 
130 

G67 

182 

419 


340 
420 


INDEX. 


753 


Bulletins. 


Quarters,  Army — Continued. 

Certificate  of,  as  to  occupancy  (J.  A .  G.) 

Commutation — • 

Assignment  of,  insufficient  for  officer's  family(Comp.) . 

Change  of  orders  to  allow  (Comp. ) 

on  Day  of  relief  from  duty  (Comp. ) 

Enlisted  men  on  temporary  duty  (Comp. ) 

Enlisted  men  on  temporary  duty  in  Held  or  on  fiu"- 

lough  (Comp. ) 

not  Entitled  to,  while  occupying  public  quarters  by 

coiu"tesy  (Comp. ) 

Leasing  of,  fictitious  (Comp.") 

Militia  officers  attending  service  schoola  (J.  A.  G. ) . . . 
Officer  on  detached  duty  accepting  commission  in 

National  Guard  (J.  A.  G.) 

Officer  assigned  to  station  without  duty  (Comp. ) 

Officer    detailed    with    Pliilippiue    Constabulary 

(Comp. ) 

Officer  occupying  room  in  public  building  (Comp.). 

Officer  on  sick  leave  (J.  A.  G.) 

Officer  on  temporary  duty  retaining  permanent 

quarters  (Comp. ) 

Officer  on  temporary  duty,  training  camps  (J.  A.  G. ) . 
Officer  performing  temporary  duty  on  Army  trans- 
port (Comp. ) 

Officer  relieved  from  duty  and  retained  at  station 

(Comp.) 

Officer  temporarily  absent  from  permanent  station 

(Comp. ) 

Officers  and  pay  clerks  at  posts  (J.  A.  G.) 

Providing  same  in  kind,  officer  assigned  to  tempo- 
rary duty  (Comp.) 

Right  to,  while  awaiting  sailing  of  steamer  (Comp. ; . 
When  officer  is  furnished  room  in  public  building 

(Comp.) 

While  awaiting  sailing  of  transport  (Comp.) 

Duty  at  hospitals,  service  with  troops  (J.  A.  G. ) 

Hire  of  rooms  without  authority  (Comp. ) 

Leasing  of,  form  of  contract  for  offer  and  acceptance 

(Comp. ) 

Officer- 
Certificate  of,  not  conclusive  (Comp.) 

in  Command  of  disciplinary  company  (J.  A.  G.) 

on  Duty  with  troops  (Comp.) 

on  Leave  and  relieved  from  duty  (Comp. ) 

Temporarily  in  charge  of  recruiting  station  (J.  A.  G. ) . 

on  Temporary  duty  (Comp. ) 

on  Temporary  duty  occupying  pul)lic  (Comp.) 

on  Temporary  duty  occupying  public,  by  courtesy 

(Comp.) 

on  Temporary  duty  wliile  changing  station  (Comp.). 

as  Temporary  transport  quartermaster  (Comp.) 

Pay  clerks.     See  Pay  clerks. 

not  Public,  occupied  by  officers  and  enlisted  men  on 

temporary  duty,  heat  and  light  (J.  A.  G. ) -.-•.-■- 

Reimbursement  of  officer  occupying  house  containing 
more  rooms  than  authorized  allowance  for  heat  and 

light  (Comp. ) 

Rented  at  officer's  expense,  heat  and  light  (J.  A.  G.). . . 
Shared  by  civilians,  heat  and  light  allowance  (Comp.).. 

Veterinarians  on  temporary  duty  (Comp. ) 

Radio  Stations — • 

for  MiUtia  (J.  A.  G.) 

93668°— 17 48 


Year. 

Xo. 

i 
1 

1913 

27  i 

1914 

43 

1914 

25 

1913 

17 

191G 

47 

1915 

30 

1913 

13 

1915 

14 

1913 

23 

1917 

9 

1913 

38 

1913 

35 

1917 

3 

1913 

29 

/  1914 
1  1914 

1 

5 

1910 

18 

1912 

20 

1913 

29 

1912 

20 

1913 

1 

1913 

1 

1913 

18 

1913 

1 

1913 

23 

1913 

38 

1913 

23 

1914 

33 

1913 

29 

1915 

5 

1913 

23 

1913 

35 

1913 

4 

1913 

31 

1913 

23 

1913 

13 

1913 

31 

1913 

8 

1914 

39 

1914 

46 

1915 

30 

1914 

25 

1913 

8 

1913 

1 

Page. 


255 

423 
386 
203 
631 

512 

186 
483 
228 

648 
322 

310 
616 
267 
329 
340 
570 

50 

282 

48 
108 

133 
223 

133 
240 
315 
240 

403 

280 
467 
234 
310 
149 
300 
241 

186 
300 
168 


411 


434 
509 
385 
169 

122 


754 


IISTDEX. 


Bulletins. 

Year. 

No.       Page. 

Railroads — 

Calling  forth  National  Guard  to  protect  (J.  A.  G.) 

1917 

18 

676 

Land-gi'ant.     See  Land-grant  railroads. 

Railroad  Tickets — 

Furnished  in  variance  with  transportation  request,  Gov- 

ernment's liability  (Comp. ) 

1915 

18 

494 

Furnished  on  transportation  request,  loss  of,  liability 

(Oomp. ) 

1915 

18 

494 

Redemption  of  unused  portion  issued  on  Government 

1 

transportation  request  (J.  A.  G.) 

1914 

33             400 

Settlement  for  unused  portion  fui'nished  Army  nurse 

for  transportation  to  her  home  (J.  A.  G.) 

1914 

39             414 

Rank — 

Advancement  in.  dental  surgeons  (J.  A.  G.) 

1916 

47 

623 

Commissioned  officers  of  same  date  of  appointment, 

commissioned  service  in  Navy  (J.  A.  G. ) 

1914 

39 

413 

Officers  of  same  grade  (J.  A.  G.) 

1916 

57 

636 

Rations — 

Allowance  of,  civilian  employees  under  treatment  in 

hospital  (J.  A.  G. ) -  - .' 

1916 

8 

544 

Commutation  of,  enlisted  men  (J.  A.  G.) 

1916 

8 

546 

Real  Property.     See  Land. 

Recess  Appointments.     See  Appointments. 

Records.     See  Official  records. 

Records  of  Trial.     See  Coui-ta- martial. 

Recommission — 

Ex-officers,  in  Army  (J.  A.  G.) 

1917 
1916 

15 
18 

661 

Officers  foi'merlv  in  sei'vice,  permitted  to  resign  (J.  A.  G.) 

577 

Recruiting  Service — 

Enlisted  men  detailed  as  corporals  in,  when  discharged, 

reenlistment  pay  (Comp.) 

1912 

20 

49 

Powers  and  duties  of  retired  officer  when  assigned  to, 

summary  court  officer  (J.  A.  G.) 

1915 

9 

475 

Red  Cross — 

1 

-    Mileage  of  officers  assigned  to  (J.  A.  G.) 

1914 

5 

335 

Sale  of  medical  equipment  to  (J.  A.  G.) 

1912 

12 

16 

Reenlistment.     See  Enlistment. 

Regimental  Commander — 

Power  to  reduce  chief  musician  to  ranks  (J.  A.  G.) 

1916 

18 

569 

Registration — 

Mail    matter,    object    of,    postage    therefor    furnished 

( J.  A.  G.) 

1915 

32 

515 

Regular  Army.    See  Army. 

Regulations,  Army.     See  Xrmy  Regulations. 

Reimbursements — 

Burial  expenses  of  clerk,  Quartermaster  Corps  (Comp.). 

1916 

13 

558 

Car  fares,  funeral  escort  from  post  (Comp. ) 

1913 

17 

204 

Claim  for  expenses  haulinsr  basrsrage  (Comp. ) 

1916 

8 

549 

Clerks  on  temporary  duty,  living  expenses  (J.  A.  G.)... 

1914 

25 

381 

Loss  of  civilian  clothing  by  enUsted  man  (J.  A.  G.) 

1916 

13 

557 

for  Meals  at  home  station,  civilian  employees  (Comp.). 

1916 

47 

631 

Private  funds  expended  for  Government  (J.  A.  G.) 

1916 

8 

548 

Religious  Worship — 

Erection  of  sectarian  chapels  on  military  reservations 

(J.  A.  G.) 

1912 

20 

41 

Rental — 

Land  purchased  by  Government  prior  to  final  payment 

(Comp.) 

1917 

18 

679 

Repairs — 

to  Buildings.     See  Buildings. 

Lighthouse  tender  damaged   by  steamer  of  Quarter- 

master Corps  (Comp. ) 

1914 

46 

435 

Patented  articles  (J.  A.  G. ) 

1914 

8 

349 

INDEX. 


765 


Bulletins. 


Repairs — Continued . 

to  Property  of  officers  and  soldiers  used  by  Government 

(J.  A.  G.) 

Reporter — 

Courts-martial,   employment  of  Armv  field  clerks  as 

(J.  A.G.)-. '. 

Reservations.     See  Military  reservations. 

Reserve    Officers,     National    Guard.     See    National 

Guard,  reserve  officers. 
Resignations — 

Officers  dm-iug  Civil  War,  desertion  (J.  A.  G.).. 

Officers  of  National  Guard,  authority  of  governor  to  ac- 
cept (J.  A.  G.) 

Withdrawal  of,  Isefore  acceptance  (J.  A.  G.) 

Res  Judicata — 

Military  reservation  boundary  determined  by  bound- 
ary commission  (J.  A.  G.) '. 

Responsibility — 

Damage  to  public  property  due  to  negligence  ( J.  A .  G . ) . 

Overpayments  due  to  en'oneous  entry  of  soldier's  en- 
listment (J.  A.  G.) 

Post  exchange  accounts,  shortage  (Ct.  (is.) 

Sleeping-car  berth  erroneously  furnished  (J.  A.  G.) 

Unauthorized  sleeping-car  accommodations  to  enlisted 

men  (J.  A.  G.) 

Retired  Enlisted  Men — 

See  also  Enlisted  men. 

Allotment  of  pay  by  (Comp.) 

Death  of,  in  Army  hospital,  disposition  of  private  prop- 
erty (J.  A.  G.j 

Pay  status  on  enlistment  in  National  Guard  (Comp. ). . . 

Persons  drawing  two  salaries,  pay  and  pension  not  sal- 
aries (Comp. ) 

Ser\dcein  militia  (J.  A.  G.) 

Retired  Naval  Officer — 

Appointment  of,  to  post  under  Civil  Service  Commis- 
sion (At.  Gen.) 

Retired  Officers — 

See  also  Officers,  Army. 

Acting  as  agents  in  prosecution  of  claims  against  Go\- 
ernment  (At.  Gen.) 

Acting  as  superintendent  of  Indian  schools  (Comp.) .  . . 

Active  service  under  detail,  not  to  be  counted  for  ad- 
vancement in  grade  (.1.  A.  G.) 

Active  staff  duty,  eligibility  to  serve  as  summary  court 
(J.  AG.) 

Assigned  to  active  duty,  authority  to  command  enlisted 
men  (J.  A.  G.) 

Assigned  to  active  duty,  pay  and  allowances  (J.  A.  G.) . 

Assignment  to  duty  as  post  exchange  ofhcer  (J.  A.  G.) . 

Certificate  of,  as  to  destruction  of  property  (J.  A.  G.) .  . 

Change  of  status,  retired  list  (J.  A.  G.) 

Commission  in  National  Guard,  status  (J.  A.  G.) 

Detailed  as  acting  q uartermaster  ( J .  A .  G . ) 

Detailed   to   educational  institutions,   mounted   pay 
(J.  A.  G.) 

Exercise  of  command  (J.  A.  G.) 

Forage  allowance  on  active  duty  (J.  A.  G.) 

Longevity  pay,  active  service  in  time  of  war  (Comp.).. 

Members  of  courts-martial  (J.  A.  G.) 

Mileage,  serving  as  witness  (Comp. ) 

Powers  and  duties  when  assigned  to  recruiting  duty, 
summary  court  (J.  A.  G.) 


Year. 

No. 

I9I1 

50 

1917 

9 

1915 

9 

1916 
1913 

34 
4 

1912 

i-'  , 

1913 

8 

1913 
1913 
1913 

4 

8 

27 

1913 

8 

1914 

«l 

1914 
1917 

40  ' 

15 : 

191f) 
1913 

18 

18 

I 

1912 

20 

1912 
1912 

1 

20 
20 

191G 

31) 

1914 

52 

1914 
191() 
1913 
1913 
1910 
1910 
1914 

52 
28 
17 
18 
18 
28 
25 

1913 
1913 
1915 
1910 
1917 
191(i 

38 
35 
20 
28 
15 
47 

1915 

9 

Page. 


444 
048 

472 

K09 
147 

Jo 

102 

149 
171 
258 

104 

425 

431 
668 

586 
21S 


52 
50 

618 

450 

452 
600 
195 
219 
580 
600 
383 

320 
308 
506 
604 
660 
631 

475 


756 


IJfDEX. 


Bulletins. 


Retired  Officers — Continued. 

Promotion  for  Civil  War  ser\dce  (J.  A .  G.) 

Restoration  to  active  list,  how  carried  (J.  A.  G.) 

Ser\dce  of  chaplains  on  retii-ed  list,  promotions  (J.  A.  G.  j . 

Superintendents  of  Indian  schools  (At.  Gen.) 

Taxation  of  property  by  State  (J.  A.  G.) 

Retirement — ■ 

Allowances  when  retired  at  advanced  grade  (J.  A.  G.) . . 

Army  officers,  selection  of  home  on  (Comp.) 

Assignment  of  paymasters'  clerks  to  active  duty  (J.  A.  G.) 

Change  of  officer's  status  (J.  A.  G.) 

Enlisted  men,  counting  commissioned  service  for  pur- 
pose of  (J.  A.  G.) 

Enlisted  men,  counting  time  spent  in  confinement  for 

desertion  (J.  A.  G.) 

Officers  of  Dental  Corps  on  failure  to  pass  physical  ex- 
amination (J.  A.  G.) 

Officers  of  District  of  Columbia  militia  (J.  A.  G.) 

Officers  of  Philippine  Scouts  (J.  A.  G.) 

Pay  clerks  (J.  A.  G.) 

Service  as  civilian  in  Quartermaster  Corps  not  counted 

for  (J.  A.  G.) 

Service  in  the  Philippines  (J.  A.  G.) 

Service  in  Philippine  Scouts  (J.  A.  G.) 

Retiring  Boards — 

Army,  action  of  President  on  (J.  A.  G.) 

Returns  Office^ 

Contracts,  return  of,  disclosure  of  confidential  plans 

(At.  Gen.) 

Filing  supplemental  contracts  in  (J.  A.  G.) 

Postmasters,  authority  to  administer  oaths  to  returns 

for  (J.  A.  G.) 

Revenue-Cutter  Service — 

Light  allowance  of  officers  under  Army  Regulations 

(Comp.) 

Reviewing  Authority — 

Effect  of  approval  of  sentence,  a  portion  of  which  is 

simultaneously  remitted  (J.  A.  G.) 

Revised  Statutes — ■ 

Section  1222,  acceptance  of  office  in  National  Guard 

(At.  Gen.) 

Section  1222,  compatibility  of  officer  on  active  list  hold- 


ing office  in  militia  (J.  A.  G.). 


Section  1222,  officers  of  Regular  Army  holding  commis- 
sion in  militia  (J.  A.  G.) 

Section  1325,  reappointment  of  cadets  to  Military  Acad- 
emy under  (J.  A.  G.) 

Section  1784,  presents  from  employees  to  official  su- 
periors (J.  A.  G.) 

Section  2166,  alien  enlisted  men  (Fed.  Ct.) 

Section  3477,  assignment  of  claims  (J.  A.  G.) 

Section  3717,  separate  agreements  under,  for  public 
works  (J.  A.  G.) 

Section  3744,  construed  (Fed.  Ct.) 

Rewards — 

Additional  expenses  not  included  in  apprehension  and 
delivery  (J.  A.  G.) 

Amendment  of  Army  Regulations,  conviction  of  ab- 
sence without  leave  (J.  A.  G.) 

Claim  for  arresting  after  surrender  to  military  author- 
ities (J.  A.  G.) 

Confined  in  prison,  information  by  Bertillon  clerk  as  to 
(J.  A.  G.) ■ 


1914 
1915 
1914 
1913 
1913 

1913 
1912 
1912 
1918 

1913 

1912 

1917 
1914 
1914 
1913 

1913 
1913 
1913 

1912 


1 

30 

8 
17 
35 

27 
12 
20 
18 

39 

20 

18 

14 

1 

1 

1 

4 

38 

12 


Page. 


1912 
1914 

12 
14 

1914 

52 

1914 

50 

1912 

12 

1912 

12 

1912 

12 

1912 

12 

1912 

12 

1912 
1916 
1912 

12 
28 
12 

1912 
191G 

20 
1 

1912 

12 

1915 

1 

1912 

12 

1912 

12 

327 
510 
345 
206 
309 

255 
19 
47 

580 

615 

47 

677 
357 
326 
125 

128 
149 
321 


21 
356 

451 


446 

8 

22 

13 

13 

11 

10 

605 

5 

34 
541 

8 

460 

8 

9 


INDEX. 


757 


Bulletins. 


Rewards — Continued. 

Delivered  as  absent  without  leave  but  tried  for  deser- 
tion (.1.  A .  G.) 

Deserters,  apprehending  while  serving  in  Navy  or  ma- 
rines ( J .  A .  G . ) , 

Deserters  from  militia  or  National  Guard,  in  service  of 

United  States  (J.  A.  G.) , 

Deserters,  national  guardsmen,  organization  mustered 

out(J.  A.  G.) 

Deserters,  payment  of,  when  delivered  to  but  not  ac- 
cepted by  military  authorities  (J.  A .  G.) 

Desertion,  stoppage  of  pay  for  (J.  A.  G.) 

Effect  of  statute  of  limitations  (J.  A.  G.) 

Pfirsons  defacing  monuments  in  cemeteries  (J.  A.  G.).. 

Recovering  bodies  of  deceased  soldiers  (J.  A.  G.) 

Recovering  public  property  (J.  A.  G.) 

Rhode  Island — 

Discrimination  against  Army  uniform,  etc.,  prohibited. 
Rifle  Competition — 

Expenses  of,  at  Camp  Perry,  Ohio  (J.  A.  G.) 

Rifle  Ranges.  '  See  Militia. 
Riparian  Rights — 

Navigable  waters,  paramount  atithority  of  United  States 

(Fed.  Ct.). . . . : 

Navigable  waters,  ris;ht  of  United  States  to  use  river  bed 

(J.  A.  G.) : 

Rivers  and  Harbors— 

See  also  Navigable  waters. 

Contributed  funds,  care  of  (Comp.) 

Erection  of  wharves  in  Alaska  (J .  A.  G.) 

Lands  beneath  navigable,  use  of  (J.  A.  G.) 

Overflow  due  to  improvements  in  (J.  A.  G.) 

Roads — 

Dedication  of,  through  national  cemeteries  (J.  A.  G.^.. 

Improvement    of,    leading    to    military    reservations 
(J.  A.  G.) ..-- 

Streets  and,  control  of,  thi'ough  military  reservations 
(J.  A.  G.) ----- 

Streets  and,  improvement  of  boundary  roads  at  national 
parks  (J.  A.  G.) -  -  -  - 

Work  upon  by  citizens  required  by  State  laws  (Fed. 

Ct.) 

Salaries.     See  Pay. 
Sales — ■ 

Disposition  of  proceeds  of  manure  from  ambulance  com- 
panies (J.  A.  G.l 

Fuel  to  civilians,  postmistress  at  Army  post  (J.  A.'G.). . 

Proceeds  from  quartermaster  stores  (Comp.) 

of  Public  property.     See  Public  property. 
Salvage^ 

Drifting  submarine  mine  (J.  A.  G.) 

Saturdays — 

Four-hour  day  for  temporary  employees  on  (J.  A.  G.). . . 
Schools— 

See  also  Educational  institutions. 

for  Children  at  Army  post  (J.  A.  G.) 

Seals — ■ 

After  signatures  to  bonds  (J.  A.  G.) 

Seamen — 

Army    transport    crews,    general    laws    applicable    to 
(J.  A.  G. ) ■  -  ■  - 

Army    transport    service,    appropriation    for    medical 
attendance  (J.  A.  G.) 

Medical  treatment  of  transport  employees  (J.  A.  G.). .  - 


Year. 

No. 

1912 

12 

1912 

20 

191G 

28 

191G 

47 

1914 
1015 
1013 
1913 
1914 
1915 

33 
3G 
1 
13 
39 
14 

1917 

IS 

1913 

13 

1914 

46 

1915 

36 

1013 
1013 
1014 

1  1914 

1 

29 
13 
14 
14 

!  1913 

27 

1913 

8 

.1913 

17 

1914 

25 

1916 

8 

1014 
1014 

1917 

1 

50 
33 
15 

'  1015 

21 

1914 

39 

1913 

27 

1913 

13 

191G 

57 

1912 
1913 

12 
17  1 

Page. 

9 

35 

592 

623 

393 
519 
110 
ISl 
413 
481 

686 

173 

437 
520 

283 
182 
358 
357 

252 

161 

195 

380 

555 


444 
400 
667 


501 
410 

250 
174 

638 

11 
194 


758 


INDEX. 


Bulletins. 


Second  Lieutenants — 

National  Gnard,  appointment,  antedating  rank  (J.A.G.). 
Order  of  filling  vacancies  in  grade  of,  sec.  24,  national 

defense  act  (J.  A.  G.) 

Secretary  op  War— 

Acceptance  of  chapel  donated  on  military  reservation 

fj.  A.  G.) 

Authority  to  lease  water  power  (At.  Gen.) 

Cancellation  of  bonds  on  acceptance  of  new  (J.  A.  G.). . . 
Duty  as  to  contributed  funds  for  rivers  and  harbors 

(Comp.) 

Lease  public  lands  (J.  A.  G.) 

May  grant  temporary  use  of  public  works  (J.  A.  G.) 

Power  to  change  Army  Regulations  (Ct.  Cls.) 

Power  to  loan  public  property  (.T.  A.  G.) 

Power  to  relocate  railroad  right  of  way  (J.  A.  G.) 

Sentences — 

See  also  Courts-martial. 

Computation  of  expiration  of  (J.  A.  G.) 

Courts-martial,  detention  of  pay  (J.  A.  G.) 

Courts-martial,   dishonorable  discharge  while  serving 

prior  sentence,  cumulative  sentences  (J.  A.  G.) 

Courts-martial,  extra-duty  pay  not  forfeited  hy  (Comp.) . 
Courts-martial,  forfeiture  of  pay,  when  begins  to  run 

(Comp.) 

Courts-martial,  publication  of,  jurisdiction  to  amend 

(J.  A.  G.) : 

Discharge  without  honor  not  revocable  (J.  A.  G.) 

Dishonorable    discharge    suspended,     designation     of 
prisoner  under  (J.  A.  G.) 

Inadequate,  officer  mistreating  men  (J.  A.  G.) 

Relation  to  finding  and  evidence  (J.  A.  G.) 

Remission  in  case  of  Marine,  termination  of  detachment 
with  Army  before  execution  of  (J..A.  G.) 

Retention  of  soldiers  guilty  of  moral   turpitude   not 
favored  (J.  A.  G.) 

Suspended,  pay  during  confinement  and  form  for  (J.  A.  G.) 
Sergeants — ■ 

First  class.  Medical  Department,  rank  of  (J.  A.  G.) 

Service  with  Troops.     See  Detached  service. 
Shelter  Tents — 

Issue  of,  to  officers  on  memorandum  receipts  (J.  A.  G.).. 
Signal  Corps— 

Aviation    section,    act    establishing,    repeal    of    prior 
statute  (J.  A.  G.) 

Composition  of,  under  national  defense  act  (J.  A.  G.) 

Motor    cycles,    whether  •  i)assenger   carrying   vehicles 

(J.  A.  G.) '- 

Sleeping-Car  Accommodations — 

Enlisted  men.  Army  transportation  (J.  A.  G.) 

Soldiers.    See  Enlisted  men. 
Soldiers'  Home — 

See  also  National  Home  for  Disabled  Volunteer  Soldiers. 

Admission  of  discharged  soldier  to,  when  able  to  earn 

living  (J.  A.  G.) 

Special  Employees.     See  Clerks  and  employees. 
Specifications — 

Necessity  for  precision  in  drawing  (J.  A.  G.) 

Staff  Departments^ — 

Details  in  (J.  A.  G.) 

Details  to,  detached  service  (J.  A.  G.) 

Details  to,  how  made  (J.  A.  G.) *  . 

Staff  Duty — • 

Promotion  of  officers  while  on,  detached  service  (J.  A.  G.) 


Year. 

No. 

1916 

18 

1916 

18 

1913 
1913 
1917 

31 
23 
15 

1913 
1913 
1913 
1914 
1913 
1913 

29 
1 

23 
8 

35 

18 

1913 
1915 

38 
21 

1915 
1915 

36 
18 

-  1915 

9 

1915 
1913 

5 

27 

1914 
1915 
1915 

46 
36 
39 

1914 

52 

1917 
1914 

18 
46 

1917 

15 

1917 

15 

1914 
1916 

43 
18 

1914 

50 

1912 

20 

1914 

39 

1915 

39 

1916 
1914 
1913 

18 

25 

8 

1915 

1 

Page. 


INDEX. 


759 


Bulletins. 


Staff  Officers — 

Detail  of,  as  officer  of  day.  conunand  (J.  A.  G.) 

Signing  discharges  of  enlisted  men  (J.  A.  G.) 

State  Courts — 

Arrest    of    enlisted    men,    civil    proceeding    for    debt 
(J.  A.  G.) , 

Requiring  citizens  to  work  on  roads  (Fed.  Ct.) , 

State  Duty^ — 

National  Guard,  under  call  of  governor,  payment  for 

(J.  A.  G.) .' 

State  Laws- — 

See  also  Government  agencies. 

Effect  of  requirements  acquiesced  in  by  United  States 
(Comp.) 

Inspection  of  Government  horses  at  State  lines  under 
(Comp. ) 

Licenses  and  fees  imposed  by,  for  operation  of  Govern- 
ment automobiles  ( J.  A.  G . ) 

Operation  of,  within  military  reservations  (J.  A.  G.) 

Taxation  by.     See  Taxation. 
States — 

Laws  prohibiting  discrimination  against  Army  uniform, 
etc 

List  prohibiting  unlawful  wearing  of  Army  uniform, 

etc 

Statute  of  Limitations — 

Effect  of,  as  to  payment  of  reward  in  case  of  deserter 

(J.  A.  G.) 

Stenographic  Reporters— 

Army  field  clerk  employed  as  (J.  A.  G.) 

Employment  of  enlisted  men  as  (J.  A.  G.) 

Stoppage  op  Pay.     See  Pay  of  enlisted  men;  Pay  of  officers. 
Stoppages  Against  Civilian  Employees — 

Reimbursement  of  United  States  (J.  A.  G.) 

Stowaways — ■ 

Army  transport,  subsistence,  appropriation  (J.  A.  G.)... 
Subcontractors — 

Eight-hour  day,  application  to  (At.  Gen.) 

Submarine  Mine — 

Drifting,  salvage  of  (J.  A.  G.) 

SUBPCENAS — 

to  Chiefs  of  bureaus  from  Federal  court  i  .1.  A .  ( i .  ^ 

Subscriptions  to  Periodicals — 

Advance  payments  of  (.1.  A.  G.) 

Subsistence — 

Applicant  for  enlistment,  fraudulentlv  obtaining  (Fed. 
Ct. 


Year. 


191.') 
1914 


1916 
1916 


19i: 


.). 


Enlisted     men     exceeding     commutation     allowance 
(J.  A.  G.) :  - . 

Officers  and  employees  limited  to  actual  cost  of,  in 
connection  with  traveling  expenses  (Copip.) 

Purchased  for  militia  in  connection  with  joint  encamp- 
ment and  maneuvers,  cost  of  transportation  (J.  A.  G.). 

Stores,  sale  of,  and  price  paid  (J.  A.  G. ) 

Stores,  sale  of,  to  member  of  Officers'  Reserve  Corps  on 
inactive  list  (J.  A.  G.) 

Transport   surgeon,  without    charge    to.  unauthorized 

(J.  A.  G.) 

Subsistence  Department — 

Absorption  of  certain  officers  in  consolidated  Quarter- 
master Corps,  full  opinion  (J.  A.  G.) 

Summary  Court — ■ 

See  also  Courts-martial. 

Retired  officer  on  active  staff  duty,  eligibility  to  serve  as 
(J.A.G.) 


1913 

1917 
1913 


1917 
1915 
1912 
1915 
1913 
1917 

1917 

1913 

1914 

1914 
1914 

1917 

1915 

1912 
1914 


No.   Page. 


1915 

26 

1915 

5 

1914 
1915 

52 

1 

1917 

18 

1917 

18 

32 
52 


8 
8 


18 


9 
23 


18 
30 
12 
21 
8 
18 

18 

17 

33 

39 
20 

9 

21 


52 


760 


INDEX. 


Bulletins. 


Supplemental  Contracts.     See  Contracts. 
Supplies — 

See  ttlso  Contracts. 

Adjustment  of  appropriations  when  purchases  are  made 
for  one  bureau  or  department  from  another  (Comp.). . 

Advertisement  without  result,  open-market  piu^chase 
(J.  A.  G.).. , 

Aeroplane   without   advertising,    lack   of   competition 
(J.  A.  G.) ._ 

Annual,  quantity  contemplated  in  agreement  to  be  fur- 
nished (J.  A.  G.) 

for  Army  posts  in  District  of  Columbia  (At.  Gen.) , 

Deliveries  of,  after  expiration  of  contract  (Comp.) 

Delivery  of,  after  expiration  of  contract  (Comp.) , 

Discounts  on  bills  for  gas  (Comp.) , 

for  ExecutiAO  departments  (Comp.) 

Hospital,  purchased  from  hospital  fund,  transportation 
(Comp. ) , 

Liability  for  failure  to  deliver  under  agreement  repre- 
sented by  proposal  and  award  (Comp.) . . 

Medical,  for  civilian  camps  of  instruction  (J.  A.  G.).  - . 

Military,  purchase  of,  by  Organized  Militia  (J.  A.  G.).  . 

for  Office  of  Chief  of  Stafi  (Comp.) 

Open  market,  order  in  excess  of  needs  during  life  of  con- 
tract (Comp.) 

Paid    accounts    for,    may    be    reopened    for    mistakes 
(J.  A.  G.) 

Proposals  for  fiu^nishing,  alteration  after  opening  bids 
(J.  A.  G.) ^ 

Purchase  from  civilian  employees  (J.  A.  G.) 

Pm'chase  from  persons  in  military  service  (J.  A.  G.). . . 

Purchase  in  open  market  without  advertising  (Comp.). 

Pm'chase  of,   motor  trucks,  advertising  requirements 
(Comp.) 

Purchase  of,  requirement  as  to  (Comp.) 

Purchase  of,  requirements  as  to  advertising  (Comp.) 

Ftelief  of  contractors  on  account  of  in-  j(J.  A.  G.). 
creased  prices  due  to  European  war l(At.  Gen.). 

Renewal  of  contracts  for  (Comp.) 

Requirements  as  to  adi^ertising  for  (Comp.) 

for  Use  of  Army  service  in  District  of  Columbia  (Comp.) 

for  Walter  Reed  General  Hospital  (J.  A.  G.) 

Supply  Company — 

Commanding   officer   of,    whether   on    detached    dutv 

(J.  A.  G.) 

Surety — 

See  also  Contractors;  Contracts. 

Assignment  of  contract  to,  by  contractor,  payment  to 

assignee  (J.  A.  G.) 

May  be  party  to  contract  (J.  A.  G.) 

Released  by  modification  of  contract  (J.  A.  G.) 

rgical  OPER.VnONS — 

When  illness  therefrom  may  be  recorded  as  in  line  of 

duty  (J.  A.  G.) 

Suspended  Sentence.    ;S'ee  Courts-martial ;  Sentences. 
Suspensions — ■ 

Civilian  employees,  pay  during  (Comp.) 

Target  Practice — 

Umpire  at,  Coast  Artillery  Corps,  service  with  troops 
(J.  A.  G.) 


Year. 

No. 

1914 

46 

1913 

8 

1914 

33 

1916 

13 

1913 

17 

1915 

9 

1916 

8 

1913 

17 

1913 

17 

1915 

30 

1914 

52 

1916 

18 

1915 

1 

1913 

27 

1915 

9 

1913 

8 

1914 

50 

1915 

21 

1914 

43 

1914 

43 

1916 

8 

1915 

14 

1915 

5 

1914 

46 

1915 

5 

1914 

14 

1915 

5 

1913 

23 

f  1913 
1  1913 

8 

27 

1917 

15 

1914 

43 

1913 

8 

1913 

4 

1913 

4 

1914 

20 

1914 

39 

Page. 


434 

156 

399 

556 
205 
476 
550 
202 
202 

511 

453 
570 

459 
262 

476 

162 

439 
500 
421 
424 

551 
484 
469 
431 
470 
361 
469 
239 
163 
254 


666 


417 
155 
139 


145 
370 
409 


INDEX. 


'61 


IJuIletins. 


Taxation — 

See  also  Government  agencies;  State  laws. 

Chauffeur's  license,  for  CJovornment  employees  CJ.  A.  O.) 

Government  agencies  on  military  reservation,  automo- 
biles (.1.  A.G.) 

Government  agencies,  State  licenses  or  fees  for  opera- 
tion of  automobiles  (J.  A.  G.) 

Inspection  fees,  officers'  mounts  (Comp.) 

Philippine  customs  stamp  tax,  exemption  of  Govern- 
ment property  from  (At.  Gen.) 

rhilippine  tariff  on  jute  l^ags,  Quartermaster's  Depart- 
ment (Comp.) 

Post  exchanges,  internal  revenue  stamps,  sales  of  per- 
fumeries and  cosmetics  (J.  A.  G.) 

Post  exchanges,  internal  revenue  tax,  sale  of  tobacco 
(J.  A.G.) 

Retired  officers  on  duty  at  State  schools  (J.  A.  G.) 

Soldier  assigned  to  Army  Reserve  (J.  A.  G.) 

Soldier's  baggage,  stamp  tax  (J.  A.  G.) 

State  tax  on  land  title  (J.  A.  G.) 

State  tax  on  operation  of  automobiles  (J.  A.  G.) 

State,  power  of,  to  imprison  soldier  for  nonpayment  of 

poll  tax  (Fed.  Ct.) 

Teacher  op  French — 

Military  Academy,  French  citizen,  oath  (J.  A.  G.) 

Telegrams — 

Concerning  deserters,  when  expense  for,  is  included  in 
reward  (Comp.) 

Damage  for  mistake  in  transmitting  (J.  A.  G.) 

Delinquent  contractors,  payment  for,  authorized  (Comp.) 

Expenses  for,  in  connection  with  purchase  of  mount 
(J.  A.G.) 

Government  rates,  National  Guard  (J.  A.  G.) 

Night,  and  lettergrams,  mistake  in  designation,  rates 

(Comp.) 

Telegraph  Companies — 

Damages,  limiting  liability  of  (J.  A.  G.) 

Telegraph  Operators — 

Not  laborers  or  mechanics  within  the  meaning  of  eight- 
hour  law  (J.  A.  G.) 

Telegraph  Service — 

Charges  for,  to  other  departments  (J.  A.  G.) 

Telephone  Service — 

Installation  in  private  quarters  (Comp.) 

Installation  in  private  ciuarters  (Comp.) 

Installation  in  private  residence  (J.  A.  G.) 

Payment  for,  in  building  owned  by  Government  but 

used  as  private  residence  (Comp.) -. 

Temporary  Duty — 

Clerks,  etc.,  on.     See  Clerks  and  employees. 

Heat  and  light  to  officers  on.     See  Heat  and  light. 

Training  camps,  retaining  station,  quarters,  heat  and 

light  fj.  A.G.) 

Temporary  Employees.     *SVe  Clerks  and  employees. 

Tents.     See  Shelter  tents. 

Time— 

Computation  for  fractious  of  months  (Comp.) 

Computation  for  31st  of  month  (Comp.) 

TiM-.o  OP  Peace — 

Construction  of  law  as  to  detached  service  in,    full 
opinion  (J.  A.  G.) - 

Status  of  officer  where  law  relating  to  detached  service 
is  inoperative  because  time  other  than  (J.  A.  G.) 


Year. 

No. 

1916 

18 

1912 

20 

1914 
1914 

52 
25 

1912 

12 

1913 

1 

1915 

1 

1915 

1913 

1914 

!  1915 

1  1913 

;  1914 

1 
35 
25 
14 
27 
20 

1916 

1 

1912 

20 

'  1913 
1914 
1913 

8 

46 

8 

1913 
1  1916 

23 

28 

1914 

25 

1914 

46 

1913 

29 

1914 

20 

1913 
1916 
1914 

35 

39 

5 

1912 

20 

1916 

18 

1914 
1913 

20 
23 

1  1912 

22 

1914 

33 

Page. 


581 
41 

453 

3S7 

23 
135 
459 

459 

309 
384 
481 
256 
368 

541 

42 

166 
428 
165 

229 

598 

3S7 
428 

275 

368 

313 
618 
335 

50 


570 


371 
241 


54 
393 


762 


INDEX. 


Bulletins. 


Tips— 

Military  attaches  abroad,  payment  of  orderly  and 
(Comp.) 

Title — 

Buildings  erected  on  militarv  reservations  under  license 
(J.  A.  G.) " 

Torts — 

Government  agents,  failure  to  keep  sidewalk  in  repair 
(J.  A.  G.) 

Government  not  responsible  for  torts  of  employees 
(Comp.) 

Government  not  responsible  for  torts  of  officers  (J.  A.  G.). 
Transfer  of  Officers 

Below  grade  of  lieutenant  colonel,  place  on  lineal  list, 

sec.  25,  national  defense  act  (J.  A.  G.) 

Personal  examination  for  (J.  A.  G.) 

Tran  sportation — 

See  also  Travel  allowances;  Traveling  expenses. 
Allowance  to  general  prisoner  on  discharge,  continental 

limits  of  the  United  States  (J.  A.  G.) 

Allowances  to  men  furloughed  to  Army  Reserve  (Comp.). 
Applicants  for  enlistment  to  recruit  depot,  fraudulently 

obtaining  (Fed.  Ct.) 

Army  officer  engaged  in  entertaining  foreign  officials 

(Comp.) 

Army  supplies  in  American  vessels  (J.  A.  G.) 

Articles  imported  for  a  particular  use  (J.  A.  G.) 

Attendant  in  charge  of  horses  (Comp.) 

Authorized  mounts,  officers  of  National  Guard  (J.  A.  G.). 
Automobile,  hire  from  officer  unauthorized  (J.  A.  G.)... 

Baggage  allowance  ami  crating  (J.  A.  G.) 

Baggage  of  civilian  employees  (J.  A.  G.) 

Baggage  of  officer  on  mileage  status  (Comp.) 

earner's  liability  on  Government  bill  of  lading  (Comp.). 

Charges  for  special  services  by  company  (Comp.) 

Civilian  employees,  Signal  Corps,  land-grant  deduc- 
tions (Comp.) 

Commodity  and  class  rates  (Comp. ) 

Condemned  Army  horses  issued  to  militia,  appropria- 
tion (J.  A.  G.) 

Contract  party,  rate  involving  land-grant  deductions 
(Comp.) 

Cost  for  subsistence  purchased  for  militia  in  connec- 
tion with  joint  encampment  and  maneuvers  (J.  A. 
G.) 

Cost  of  excess  baggage,  retundment  by  officer  (J.  A.  G.). 

Deduction  for  loss  occurring  in  prior  shipment  (Comp.). 

Deserter's  remains,  killed  while  attempting  to  escape 
( J .  A .  G . ) 

Difference  between  party  and  individual  service  (Comp.) 

Discharged  general  prisoners  (J.  A.  G. ) 

Discharged  general  prisoner.  Marine  Corps,  serving  with 
Army  (J.  A.  G.) 

Discharged  soldier  using  request  as  part  payment  on 
through-trip  fare  (Comp. ) 

Effects  of  enlisted  men  on  discharge  (J.  A.  C.) 

Election  of  routes  by  discharged  soldiers  (J.  A.  G.) 

Enlisted  men  convicted  of  desertion,  from  place  of  trial 
to  organization,  sentence  disapproved,  stoppage  of 
pay  (.1.  A.  G.)... ...-.-.--. 

Enlisted  men,  on  discharge  (Comp.) 

Enlisted  men  on  furlough  ordered  to  duty  (Comp.) 


Year. 

No. 

1914 

43 

1915 

9 

1912 

20 

1916 

28 

1913 

17 

1916 

18 

1917 

18 

1916 

18 

1915 

36 

1917 

18 

1914 

43 

1913 

27 

1914 

25 

1913 

31 

1916 

57 

1915 

36 

1913 

27 

1913 

35 

f  1913 
1  1913 

27 

29 

1913 

18 

1916 

57 

1915 

26 

1913 

31 

1915 

36 

1913 

8 

1914 

39 

1914 

8 

1914 

50 

1915 

18 

1914 

20 

1914 

5 

• 

1915 

30 

.  1915 

1 

1913 

35 

1914 

5 

1915 

30 

1915 

32 

1915 

30 

Page. 


424 
473 

35 

602 
193 


565 
677 


581 

522 

681 

424 
256 
384 
300 
636 
521 
257 
309 
264 
285 
223 
639 

507 
301 

522 

170 


411 
350 

447 

488 
373 
336 

509 

463 
310 
335 


508 
516 
512 


I2sDEX. 


763 


Bulletins. 


Transportation — Continued. 

Enlisted  men  returning  from  furloughs,  cost  of  (J.  A.  G.). 
Excess  baggage,  apportionment  of  charges  (C'omp.) 

Excess  baggage  on  change  of  station  (f'omp.) 

Excess,  for  discharged  soldiers  by  longer  route  (;j.  A.  (J . ) . 
Excess  passenger  baggage  of  oflicer,  cost  of  (J.  A.  G.). . . 
Excess  shipment  of  goods  on  change  of  station  (J.  A.  G. ). 
Freight  charges,  shrinkage  of  weight  of  shipment  en 

route  fComp.) 

Funeral  escort,  refundment  (C'omp. ) 

Furnishings    for    public    buildings,    land-grant    roads 

(Oomp. ) 

Government  bill  of  lading,  loss  by  unprecedented  flood 

(ct.  cis.) :.... 

Hire  of  automobile  by  officer  (Comp. ) 


Year.   No.  i  Page. 


1914 
1910 
1915 
1910 
1914 
1916 
1915 

1915 
1913 

1914 


Hire  of  automobiles  by  officers  on  mileage  status  (Comp.). 

Hire  of  automobile  for  field  inspection  (Comp. ) 

Horses,  change  of  station  l)y  officer,  valuation  (Comp.)  . 

Horses,  resignation  of  officer  (J.  A.  G. ) 

Hospital  supplies,  cost  payable  from  hospital  fund 
(Comp.) 

Household  goods,  carrier's  risk  (Comp.) 

Household  goods,  change  of  station  (J.  A.  G.) 

Household  goods,  professional  books  (Comp.) 

Household  goods,  rates  on  (Comp. ) 

Immigrant  rate,  troop  property  (Comp. ) 

Land-grant  deductions,  basis  of  (Comp.) 

I^and-grant  deductions,  extra- fare  train  (Comp.) 

Land-grant  deductions,  persons  in  military  service 
(Comp. ) 

Liability  of  Government  as  carrier  of  contract  supplies 
(J.A.G.) 

Loss  of  public  property  at  railroad  depot  (J.  A.  G.).  .  .  . 

Loss  of  ticket  issued  on  transportation  reque?*  ^Ccuip.). 

Mileage  when  Government  conveyance  is  used  (Comp.) 

Militia,  Army  officer  detailed  as  instructor  and  inspec- 
tor (J.  A.  G.) 

Mounts  from  place  of  purchase  to  officer's  station,  com- 
putation of  cost  (J.  A.  G. ) 

Officers'  baggage,  allowance  on  change  of  station,  pro- 
motion (J.  A.  G.) 

Officers'  change  of  station,  baggage  allowance  (J.  A.  G.). . 

Officers  engaged  on  map  work  (Comp.) 

Officers'  excess  baggage  (Comp. ) 

Officers'  horses  (J.A.G.) 

Officers  on  mileage  status  (Comp. ) 

Officers'  private  mounts,  land-grant  deductions  (Comp. ). 

Organized  Militia  in  connection  with  joint  maneuvers, 
deductions  under  land-grant  acta' (Comp.) 

Parcel-post,  insurance  (J.  A.  G. ) 

Parcel-post,  limitation  on  Government  frank  (J.  A.  G.). 

Parcel-post  packages,  official  business  (At.  Gen.) 

Party  rates,  number  of  persons  below  limit  (Comp.). . . . 

Passenger,  party  rates  (Comp.) 

Personal  baggage  of  officers  (Comp. ) 

Private  mounts.  National  Guard,  ofticers  mustered  out 
(J.A.G.) - .  -  -  - 

Redemption  of  vmused  portion  of  ticket  issued  on  Gov- 
ernment request  (J.  A.  G.) 


1915 


1912 
1914 


33 

396 

18 

586 

36 

525 

13 

559 

50 

444 

47 

629 

9 

475 

36 

524 

17 

204 

20 

372 

12 

26 

5 

339 

5 

340 

23 

242 

25 

387 

50 

447 

27 

204 

21 

503 

39 

534 

30 

511 

14 

30 1 

8 

103 

38 

323 

13 

186 

32 

517 

27 

265 

25 

386 

14 

484 

5 

332 

31 

297 

18 

494 

5 

340 

12 


13 


396 


1915 

'Mi 

521 

1916 

bl 

638 

1913 

17 

204 

1913 

35 

313 

1913 

4 

150 

1914 

5 

340 

1917 

3 

647 

1914 

52 

455 

1913 

17 

197 

1913 

8 

164 

1913 

13 

187 

1913 

38 

324 

1913 

29 

284 

1913 

31 

301 

1916 

47 

629 

1914 

33 

400 

764 


INDE} 


Bulletins. 


Transportation — Continued . 

Requests.     See  Transportation  requests. 

Settlement  for  unused  portion  of  ticket  furnished  Army 
nurse  for  transportation  to  her  home  (J.  A.  G.) 

Shipment  or  disposition  of  effects  of  insane  soldier 
after  discharge  (J.  A.  G.) 

Shipments  on  vessels  not  of  American  register  (J.  A.  G.) . 

SleejDing-car  accommo  iations  to  enlisted  men  (J.  A .  G.) . 

Sleeping-car  berths  erroneously  furnished  (J.  A.  G.) 

Soldier  absent  without  leave  (J.  A.  G.) 

State  inspection  fees,  officers'  mounts  (Comp.) 

Ticket  in  variance  with  transportation  request  (Comp.) . . 

Transports,  families  of  ofhcers  and  others  on  Army 
(J.  A.  G.) 

Travel  allowances  of  discharged  soldiers,  selection  of 
point  within  continental  limits  of  United  States  (J. 
A.G.) 

Written  proposals  and  acceptances  fixing  rates,  termi- 
nation of  (Comp .) 

Transportation  in  Kind — ■ 

Furnished  to  discharged  soldier  but  not  used  (J.  A.  G.). 
Transportation  Requests — 

Charge  for  berth  reserA-ed  for  discharged  soldier  on  (Comp.) 

Delegation  of  authority  to  sign  (J.  A.  G.) 

Discharged  soldier  using,  as  part  payment  on  through- 
trip  fare  (Comp.) 

Loss  of  ticket  procured  on  (Comp.) 

Redemption  of  unused  portion  of  ticket  issued  on  (J.  A.  G.) 
Transport  Service — 

Officer  performing  tem.porary  duty  in,  entitled  to  quar- 
ters or  commutation  (Comp.) 

Stowaways,  subsistence,  appropriation  (J.  A.  G.) 

Use  of,  in  transporting  Chinese  exhibits  to  Panama- 
Pacific  International  Exposition  (J.  A.  G.) 

Transport  Suroeons — 

Subsistence  of,  at  public  expense  (J.  A.  G.) 

Travel  Allowances — 

See  also  Mileage;  Transportation. 

Attendance  of  officer  at  prison  association  (Comp.) 

Charge  for  berth  reserved  for  discharged  soldier  on  trans- 
portation request  (Com.p . ) 

Discharged  soldier,  from  place  of  discharge  (Comp.) 

Discharged  soldiers,  not  subject  to  deductions  (Comp.). . 

Discharged  soldiers,  sleeping-car  berth  (Comp .) 

Discharged  soldiers,  transportation  varying  from  request 
(Comp .) 

Discharged  soldiers,  traveling  by  longer  route<|  ^'r''Qf,^„  \ 

Discharged  soldiers  who  enlisted  in  Philippines  (Comp.) . 
Election  of  routes  by  discharged  soldiers  (J.  A.  G.) 

Enlisted  men  on  discharges  //-'qj^iU  \    ' 

Enlisted  men  on  discharge,  personal  effects  (J.  A.  G.). . 
Excess  cost  of  transportation  of  discharged  soldier  over 

longer  route  (J.  A.  G.) 

Officer,  not  performed  under  competent  orders  (J.  A.  G.) . 
Officer,  traveling  with  detachment  as  escort  to  officer  of 

Mexican  Army  (J.  A.  G.) 

Officers,  upon  their  discharge  (J.  A.  G.) 

Station  changed  while  officer  is  on  leave  of    absence 

(Comp.) 

Subsistence,     enlisted     men     exceeding      allowance 

(J.  A.G.) '. 


Year. 

No. 

1914 

39 

1914 

50 

1913 

17 

1913 

8 

1913 

27 

1913 

29 

1914 

25 

1915 

18 

1913 

13 

1914 

33 

1915 

1 

1915 

5 

1914 

46 

1914 

1 

1915 

1 

1915 

18 

1914 

33 

1912 

20 

1915 

30 

1914 

39 

1915 

21 

1913 

17 

1914 

46 

1914 

43 

1914 

14 

1914 

5 

1914 

43 

1913 

4 

1913 

17 

1913 

8 

1914 

5 

1913 

1 

1916 

18 

1913 

35 

1914 

50 

1915 

1 

1915 

1 

1914 

20 

1913 

4 

1913 

17 

Page. 


414 

443 
197 
164 
258 
279 
387 
494 

182 


400 

462 
468 

435 

327 

463 
494 
400 

50 
510 

414 

501 

198 

435 
425 
362 
341 

426 
151 
204 
169 
335 
131 
586 
310 

444 
461 

461 
369 

153 

196 


INDEX. 


765 


Bulletins. 


Travel  Allowances — Continuod. 

Transportation  in  kind  iurnished  discharged  soldier  but 
not  vised  (J.  A.  G.) 

Transportation  of  discharged  soldier  to  point  selected 
within  continental  limits  of  United  States  (J.  A.  G.). . 

Travel  between  Alaska  and  United  States  (Comp.) 

Traveling  Expenses — 

See  also  Mileage. 

Allowances  to  civilian  employees  (Comp.) 

Civilian  employees  on  temporary  duty  (Comp.) 

Computation  of  (Comp.) 

Expenses  incurred  after  return  from  journey  (Comp.). . 

Hire  of  automobiles  (Comp.) 

Hire  of  automobiles  by  oflicers  (Comp.) 

Military  attaches  abroad  as  military  observers  (J.  A.  G.).. 

Military  attaches  abroad,  payment  of  I  (j^^\q\ 

Military  attaches  abroad,  pay  of  orderly  and  for  tips 

(Comp.) 

Military  attaches  and  military  oljservers  abroad  (J.  A.  G.) 
Military  attaches  going  to  and  returning  from  post  of 

duty  (Comp.) 

National  Guard  in  responding  to  call  (J.  A.  G.) 

Officer  on  duty  in  connection  with  National  Guard 

(J.  A.  G.) : 

Officers  and  employees  limited  to  actual  cost  of  sub- 
sistence (Comp.) 

Officers  assigned  to  Red  Cross  (J.  A .  G . ) 

Officers  on  civil  business  with  commission  (J.  A.  G.) 

Traveling  with  Troops — 

Enlisted  men,  when  regarded,  Pullman-car  accommoda- 
tions (J.  A.  G.) 

Officer  traveling  -with  detachment  as  escort  to  Mexican 

officer  (J.  A.  G.) 

Travel  Pay.    See  Pay  of  enlisted  men. 
Typewriters — 

Exchange  of  (J.  A.  G.) 

Unforseeable  Cause — 

Delays  in  completion  of  contract  on  account  of  (Comp.) . . 
Uniforms — • 

Federal  law  prohibiting  discrimination  against 

Federal  law  prohibiting  unlawful  wearing 

List  of  States  prohibiting  unlawful  wearing  of  Army,  etc. . 
National  guardsmen,  retention  of,  on  muster-out  (J.A.G.) 
State  laws  prohibiting  discrimination  against — 

Connecticut 

Florida 

Kentucky 

Maryland 

Massachusetts 

Minnesota 

New  Hampshire 

New  York 

Oklahoma 

Pennsylvania 

Rhode  Island 

Virginia 

United  States,  wearing  of,  prohibited  (J.  A.  G.) 

Wearing  of,  by  civilians  of  Army  Y.  M.  C.  A.  (J.  A.  G.). 
United  State.s — 

Continental  limits  of,  to  which  soldiers  may  be  furnished 

transportation  on  discharge  ( J .  A .  G . ) 

Law  prohibiting  discrimination  against  Army  uniform, 
etc 


Year. 

No. 

1915 

5 

1914 

33 

1913 

1 

1913 

8 

1913 

18 

1914 

5 

1914 

50 

1913 

23 

1914 

5 

1915 

9 

1914 

4G 

1914 

50 

1914 

43 

1914 

50 

1914 

50 

1917 

18 

1917 

3 

1914 

33 

1914 

5 

1913 

27 

1915 

36 

1915 

1 

1917 

18 

1914 

46 

1917 

18 

1917 

18 

1917 

18 

1917 

3 

1917 

18 

1917 

18 

1917 

18 

1917 

18 

1917 

18 

1917 

18 

1917 

18 

1917 

18 

1917 

18 

1917 

18 

1917 

18 

1917 

18 

1917 

3 

1917 

3 

1914 

33 

1917 

18 

Pas-e. 


468 

400 
136 


169 
223 
339 
448 
242 
339 
474 
435 
445 

424 
445 

448 
676 

645 

405 
335 
259 


258 
461 

678 

432 

*683 
687 
687 
644 

683 
684 
684 
684 
684 
685 
685 
685 
686 
686 
686 
686 
645 
645 

400 
688 


766 


INDEX. 


Bulletins. 


United  States — Continued. 

Law  prohibiting  unlawful  wearing  of  uniform 

Patented  inventions,  use  of,  by  (Fed.  Ct.) 

Stoppage  of  pay  of  enUsted  men  to  reimburse  (J.  A.  G.).. 
Unliquidated  Damages.     See  Damages. 
Vehicles — 

Loss  of,  hired  by  Government  employee  traveling  on 
public  business  (Comp.).~. 

Passenger-carrying,  motorcycles  (Comp.) 

Passenger-carrjdng,    whether    motorcycles    for    Signal 

Corps  are  (J.  A.  G.) 

Veterinarians — 

See  also  Veterinary  Corps. 

Appointment  under  national  defense  act  (J.  A.  G.) 

Examination  for  appointment,  scope  of  (J.  A.  G.) 

First  board  of  examiners,  composition  of,  national  de- 
fense act  (J.  A.  G.) 

Quarters  or  commutation  while   on  temporary   duty 

(Comp.) 

Veterinary  Corps — 

See  also  Veterinarians. 

Credit  for  "Government  service"  (J.  A.  G.) 

Veterinarians,  whether  included  in  (J.  A.  G.) 

Virginia — 

Discrimination  against  Army  uniform,  etc,  prohibited. . 
Voluntary  Service — 

Claim  for  caring  for  and  returning  lost  public  property 
(J.  A.  G.) - 

Expense  of  returning  soldiers  absent  without  leave  to 
their  commands  (J.  A.  G. ) 

Improvements  at  national  cemeteries  (J.  A.  G. ) 

Repair  of  railroad  siding  on  miUtary  reservation  (J.  A.  G.) 

Retired  Army  officer  as  superintendent  of  .Indian  school 
(At.  Gen.) 

Reward  for  recovering  public  property  (J.  A.  G.) 

Transportation  for  relief  of  flood  victims  (J.  A.  G.) 

Volunteer  Forces — 

Called  into  service  of  United  States,  service  in,  of  en- 
listed men  on  active  list  of  Regular  Army  ( J.  A .  G . ) 

Preparation  for  commission  in  (J.  A.  G.) 

Volunteers — 

Private  military  body  assuming  name  of   'U.  S.  Volun- 
teers" (J.  A.  G.) 

Vouchers — 

Loss  of,  audit  of  accounts  (Comp.) 

Waiver — 

See  also  Contracts. 

Exemption  from  service  in  National  Guard  (J.  A.  G.).  . . 
Walter  Reed  General  Hospital — 

Supplies  for,  how  purchased  (J.  A.  G. ) 

War  Department — 

See  also  Secretary  of  War. 

Adjustment  of  appropriations  for  purchase  made  by 
bureaus  or  other  departments  from  (Comp.) 

Clerical  positions,  filUng  under  act  of  Aug.  23,  1912 
(Comp.) 

Status  of  emplovees  of  Lighthouse  Ser\dce  when  trans- 
ferred to  ( J.  aI  G.) '. 

W^eight — 

Shrinkage  of  en  route,  basis  of  freight  charges  (Comp.)  — 


1917 
1912 
1915 


1915 
1916 

1914 


1916 
1916 

34 

28 

1916 

18 

1913 

8 

1917 
1917 

15 
15 

1917 


1914 

1914 
1914 
1913 

1913 
1915 
1913 


1914 
1913 


1912 
1913 

1916 


No. 


18 

12 

1 


21 
39 

50 


Page. 


18 


43 

50 
25 

27 

17 
14 

18 


39 
1 


12 
17 

28 


1913 
1913 

8 

27 

1914 

46 

1912 

20 

1917 

18 

1915 

36 

INDEX. 


767 


Bulletins. 


Witnesses — 

Sec  also  Evidence. 

Courts-martial,  member  of  court  for  prosecution,  plea  of 

guilty  (J.  A.  G.) 1914 

Defendant  as,  credibility  (St.  Ct.) I     1914 

Pri\dlege  of  (Fed.  Ct.) [     1915 

Refusal  to  testify,  pardon  (Fed.  Ct.) ;     1914 

NoTK. — Reversed  by  U.  S.  Siipreme  Court.  \ 

Subprena  of  chief  of  bureau  (J.  A.  G. ) i     1913 

Wife  testifying  against  husband  (J.  A.  G.) 1915 

Young  Me.v's  Christian  Association: 

Army  branch,  wearing  of  uniform  by  (J.  A.  G.) 1917 


No.   I   Page. 


52 

449 

20 

374 

14 

48<j 

25 

390 

8 

ir,o 

39 

5  IS 

645 


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